Yes… and no.
Yes - as long as you are at least 21, under a .08, and/or your driving is not impaired. You are legally presumed to be impaired if you are .08 or more.
No - it is never legal to literally drink and drive, i.e. open container.
MYTH: I cannot be arrested for DUI unless my BAC was at least .08.
There are two sections to drunk driving, 23152(a) and 23152(b). The (a) section states, "It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug to drive a vehicle". The (b) section states, "It is unlawful for any person who has a 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle".
So what's the difference and how is it applied? The best way to explain it is by examples:
Driver #1 is a light drinker, has two beers, and is very tipsy. His balance, coordination, driving, etc., are impaired. This officer must articulate that the effects of alcohol impaired his ability to drive safely and can arrest him under the (a) section, regardless of the BAC.
Driver #2 had four beers and has a BAC of .09. He can be arrested for the (b) section. And because the law presumes a person's driving to be impaired if they are at least a .08, he can also be arrested for the (a) section.
Here are additional Vehicle Codes related to drinking and driving:
VC 23220 addresses drinking while driving, which is always illegal in California.
VC 23222 addresses having an open container while driving.
VC 23223 addresses having an open container while in the motor vehicle, not driving.
*Open containers: includes any alcoholic beverage (can, bottle, or other receptacle) which has been opened or has a broken seal.
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The charges and penalties for drinking and driving can range greatly, from an infraction and fine to a felony and prison. At the Law Offices of Jarrod Wilfert, we have an experienced team that can help assist you through your legal troubles. Please call for a FREE consultation with a seasoned Ventura County DUI attorney, 805-324-6777.