California DUI law imposes a legal alcohol limit for most adult drivers of a .08% blood alcohol concentration. However, the law imposes an even lower BAC limit for commercial, taxi, limo, rideshare and underage drivers.
Specifically, the BAC limits are:
- Adult drivers (non-commercial vehicles): .08%.1
- Commercial drivers: .04%.2
- Taxi, limo, and ride-sharing drivers: .04%.3
- Underage drivers: .05%.4
Can I be under the influence with a BAC below California’s “legal limit”?
Yes. You can be found guilty of driving under the influence even if your BAC is under the “legal limit.” You are considered to be under the influence (regardless of BAC) anytime that:
- Due to the influence of alcohol and/or drugs,
- You can no longer drive as well as a cautious sober person under similar circumstances.5
To help you better understand the law, our California DUI defense lawyers explain 8 critical points about BAC:
- 1. What is BAC?
- 2. How accurate are BAC measurements?
- 3. How is BAC measured?
- 4. What is the legal limit for BAC in California?
- 5. How is BAC used during a DUI traffic stop and arrest?
- 6. How is BAC used during a California DUI prosecution?
- 7. Should I choose a blood or a breath test if arrested for a California DUI?
- 8. How can I fight DUI test results in court?
- Additional resources
Blood alcohol concentration (“BAC”) is a measure of the amount of alcohol in your bloodstream. It is also referred to as “blood alcohol content” or “blood alcohol level.”
BAC is expressed as a percentage – for instance .08% (the California DUI limit for most adult drivers). This percentage represents the grams of alcohol present in every 100 milliliters of your blood.
A higher number indicates that you have more alcohol in your system. A lower number indicates less alcohol.
BAC can be measured directly by a DUI blood test. Or it can be approximated by a DUI breath test. We discuss these in Section 3, below.
DUI chemical tests for BAC are considered a scientifically accurate way to measure blood alcohol. More importantly, they are legally admissible as evidence in a California driving under the influence prosecution.
BAC is measured by either a DUI breath test or a DUI blood test. Both are considered reliable when properly administered. Both are admissible in court.
Let’s take a closer look at each of them.
The most commonly used test for BAC in California is a breath test. Breath tests are minimally invasive and deliver instant results.
Breath tests in California fall into two basic categories (discussed below):
- Pre-arrest “preliminary alcohol screening” (“PAS) tests, and
- Post-arrest DUI breath tests.
How DUI breath tests measure blood alcohol
A breath test does not directly measure the percentage of alcohol in your blood. Instead, it measures the alcohol present in the deepest part of your lungs, where it is closest to your blood supply.
A “Breathalyzer”-style machine then mathematically converts this amount into an approximately equivalent blood alcohol percentage. The formula it uses to do this is known as a “partition ratio.”
In actual fact, partition ratios can differ from person to person and situation to situation. Though in California, by law, the partition ratio is deemed to be 2,100 to 1.6 This means that the amount of alcohol present in 2,100 milliliters of deep lung breath is considered legally equal to the amount of alcohol in 1 milliliter of blood.
A preliminary alcohol screens (PAS) test is usually given before you are arrested for DUI. Typically, this will occur after a traffic stop or at a DUI sobriety checkpoint.
You may lawfully decline a pre-arrest PAS test unless:
- You are under 21 years of age,7 or
- You are on probation for a prior DUI offense.8
After you have been lawfully arrested for DUI, you will be given the choice of a breath or blood test. You must take this test even if you previously took a PAS breath test. 9
Consequences of refusing to take a chemical test include the automatic suspension of your driver’s license for at least one year.10
Most people elect to take the breath test as it is less invasive. This post-arrest breath test is usually given on a desktop device at the police station. Otherwise, it is similar to a PAS test.
In some counties, the police may give this post-arrest breath test roadside. In this case, it will appear similar to a PAS test. The important difference, however, is that unlike a PAS test, a post-arrest test is not optional, no matter where it is given.
Blood tests directly measure the alcohol in your blood. This makes them the most accurate test for determining your blood alcohol concentration—at least, when everything is done strictly according to the procedure.
Your blood will be taken by someone licensed by the state.11 Part of this sample will be sent to a lab for analysis. It can take several weeks for us to get these test results.
The main advantage of a DUI blood test over a DUI breath test is that part of the sample can be saved. This means we can get a hold of it and have it independently tested.12
As Riverside DUI defense attorney Michael Scaffidi13 explains,
“When a client chooses a blood test, we can file a California DUI ‘blood split’ motion. This lets us obtain part of the same blood sample the police used and have it sent to a lab of our choice for independent testing. If the results are different, we can often use them to challenge the prosecution’s case.”
Blood alcohol concentration is not normally measured by a urine test in California DUI cases. Urine tests can accurately detect the presence of alcohol, but they are less reliable than blood tests or breath tests for determining the specific amount of alcohol present.
So a urine test will only be used in a California drunk driving case if:
- Both a blood and breath test are unavailable, or
- You are incapable of taking one of the tests and the other one is not available.14
Reasons you might be incapable of taking a blood or breath test can include:
- A medical condition (such as a breathing disorder or clotting disorder), or
- An extremely high level of inebriation or unconsciousness (making it difficult or impossible to complete a breath test).
By law, driving with more than a certain amount of alcohol in your system is considered driving under the influence. This is known as a “per se” DUI under the Vehicle Code sections set forth below.
“Per se” is a Latin phrase meaning “in itself.”15 Some DUIs are “per se” because having a BAC at or above the California DUI limit is considered a violation of law in and of itself. In such a case, the prosecutor does not need to prove that your driving was actually impaired.
California’s “per se” DUI code sections
California’s “per se” DUI code sections are:
- Vehicle Code 21352(b), driving with a BAC of .08% or higher (adults, non-commercial vehicles),
- Vehicle Code 23140, underage DUI with a BAC of .05% or higher (drivers under 21),
- Vehicle Code 23152(d), commercial DUI with a BAC of .04% or higher (drivers of commercial vehicles), and
- Vehicle Code 23152(e), “passenger for hire” DUI with a BAC of .04% or higher (taxi, limo, Uber and Lyft drivers, etc.).
California also has two “zero tolerance” laws. Violation is technically not a DUI, and compliance can be measured by a PAS test. These two laws are:
- California’s “Zero Tolerance” law for underage drivers, Vehicle Code 23136 VC; and
- California’s zero-tolerance law for people on DUI probation, Vehicle Code 23154 VC.
If you are under 21 or on DUI probation, you violate these laws by driving with a BAC of .01% or higher. You can also be charged with DUI if your BAC is measured at any higher, applicable level (which will be confirmed with a post-arrest blood or breath test).
BAC is used by law enforcement at two different stages:
- The DUI investigation, and
- The DUI arrest.
Learn more about these stages in our article, “The Court Process in California DUI Cases.”
During a traffic stop, if the officer suspects you of being under the influence, they may start a DUI investigation. As part of the investigation, the officer may ask you to take a PAS test.16
If you “blow” a BAC below the legal limit, the officer will usually let you go with just a traffic ticket or a warning.
If the test is positive, the officer will probably arrest you and require a post-arrest breath or blood test.
Should I agree to a PAS test?
If you are an adult driver who thinks you may be over the legal limit, you are usually not well-served by taking a PAS test. You can (and probably should) politely decline to take one. The officer may arrest you anyway.
If you think you are under the legal limit, you also have the right to decline. You may prefer, however, to take the test in order to show the officer that you are not drunk.
Note that if you are under the age of 21 or on DUI probation, you may not refuse a PAS without consequences.17
A post-arrest chemical test is considered “evidentiary.” This means a prosecutor can use it in court to as evidence that you drove drunk.
You cannot refuse this type of chemical test without consequences.18
You must usually be offered the choice of a breath or blood test. 19 Though in some cases, the officer can require testing of your blood. This can be instead of (or in addition to a breath reading) if the officer reasonably believes you are under the influence of drugs.20
Title 17 of the California Code of Regulations sets forth strict procedures for DUI chemical tests.
If these procedures are not followed to the letter, an our experienced California DUI defense attorneys can challenge the results.
We discuss such challenges in Section 8, below.
During a California DUI case, the prosecutor will use BAC and other evidence to prove that you either:
- were over the legal limit and, therefore, guilty of a DUI per se, or
- were actually impaired and, therefore, guilty of driving under the influence.
DUI per se relies on an “objective” measurement of impairment. If your BAC is at or above a specified level (such as .08 for an adult in a non-commercial vehicle), you are legally considered too drunk to drive.
Driving under the influence is a “subjective” test. The prosecutor must show that you were unable to drive safely due to alcohol.
BAC is just one element of a “subjective” drunk driving prosecution. The higher your BAC, the more likely that you were impaired. Though additional evidence of impairment is usually required.
Such other evidence might include:
- Testimony from the arresting officer about your driving pattern and physical symptoms of intoxication,
- Proof of when you drove, and
- Testimony from other witnesses (including passengers in your vehicle, if any).
Unfortunately, there is no easy answer as to the best chemical test to pick after a DUI arrest. Each has its advantages, as discussed below. Each can be challenged by an experienced California drunk driving lawyer.
The important thing is to be as polite as possible to the officer and to say as little as possible. A chemical test is not the only evidence that can be used to convict you of driving under the influence. The officer may also testify about what you said and how you said it.
Most people arrested for DUI choose to take a breath test. The main advantages of a breath BAC measurement are that:
- It is less invasive and less stressful for most people, and
- The results are available right away.
The main advantages to a DUI blood test are that:
- A blood sample allows a more accurate assessment of BAC than a breath same. This can be useful when you are very close to the legal limit).
- Part of the blood sample can be saved and independently tested by a lab of your choosing. Breath samples are not preserved.
The one advantage to refusing a chemical test is that there will be no way to prove your BAC. This can be useful to avoid a criminal prosecution for drunk driving.
The prosecution will have to prove guilt by showing that your driving was actually impaired by alcohol and/or drugs.
However… a refusal to take a chemical test is itself admissible as evidence of guilt.21 (Note that this does not apply to a PAS test unless you are under 21 or on DUI probation).22
Plus you face consequences for the test refusal, including:
- Automatic suspension of your driver’s license by the California DMV for at least one year,
- Additional time in jail if you are ultimately convicted of driving under the influence, and
- Nine months of California DUI school (instead of the usual three months) if you are nevertheless convicted.23
Who might benefit from a chemical test refusal?
Despite the consequences of a refusal, it might be a good choice if:
- You do not depend on driving to get around (and can, therefore, afford to suffer the automatic driver’s license suspension), and/or
- You are very drunk and do want to suffer the additional consequences of driving with a very high BAC (.15% or higher).24
Keep in mind that if you have a very high BAC, you might not be capable of making the best decision in the moment.
Regardless of your decision, it is a good idea to consult with our experienced California drunk driving attorneys as soon as possible afterward.
Just because a breath or blood test showed a certain BAC, it does not mean the results were accurate.
We discuss potential errors at length in our articles on:
Though in general, BAC results can be challenged by taking one or more of the following positions:
- The officer did not properly advise you of the choices and consequences involved in taking DUI chemical tests;
- The officer did not observe proper procedures during the administration of the DUI test;
- The testing equipment was not calibrated as required under California law;
- The breath or blood sample was mishandled and possibly contaminated;
- You suffered from a medical condition such as GERD or diabetes that resulted in a falsely elevated BAC reading;
- You were on a high-protein/low-carb diet;
- There was “residual mouth alcohol” in your mouth;
- You had “rising blood alcohol” at the time of the test (meaning your BAC was lower at the time of driving).
For more information, please see our article, “20 Legal Defenses for Fighting California DUI Charges.”
For more information, refer to the following:
- California Driver’s Handbook: Alcohol and Drugs – Legal information provided by the California Department of Motor Vehicles.
- What Is A High BAC For A DUI? 2023 Guide – Article in Forbes.
- BAC Legal Limits in Different States, Counties, & Cities – General information by American Addiction Centers.
- The effectiveness of reducing illegal blood alcohol concentration (BAC) limits for driving: Evidence for lowering the limit to .05 BAC – Scholarly article in Journal of Safety Research.
- Moving beyond BAC in DUI: Identifying Who Is at Risk of Recidivating – Scholarly article in Criminology & Public Policy.
- California Vehicle Code 23152(b).
- Vehicle Code 23152(d).
- Vehicle Code 23152(e).
- Vehicle Code 23140 VC.
- Vehicle Code 23152(a).
- Vehicle Code 23152(b)
- Vehicle Code 13388
- Vehicle Code 13389
- Vehicle Code 23612(a)(1)(A)
- Vehicle Code 23612(a)(1)(D).
- Vehicle Code 23158(a).See also 7 California Code of Regulations § 1219.1(a): “Blood samples shall be collected by venipuncture from living individuals as soon as feasible after an alleged offense and only by persons authorized by Section 23158 of the Vehicle Code.”
- Vehicle Code 23158(b) VC.
- Riverside DUI defense lawyer Michael Scaffidi is a former police officer and police sergeant who now uses his inside knowledge to defends clients accused of DUI and other criminal offenses throughout San Bernardino and Riverside Counties.
- Vehicle Code 23612(a)(2)(A), endnote 9.
- See Dictionary.com, definition of “per se.”
- Vehicle Code 23612(a)(2)(A), endnote 9.
- Vehicle Code sections 13388 and 13389.
- Vehicle Code 23612(a)(1)(A), endnote 9.
- Vehicle Code 23612(a)(2)(A)
- Vehicle Code 23612 (a)(2)(C) VC.
- See California Criminal Jury Instructions (CALCRIM) 2130. Refusal – Consciousness of Guilt.
- People v. Jackson (2010) 189 Cal.App.4th 1461, 117 Cal.Rptr.3d 775.
- Vehicle Code 13353
- See Vehicle Code VC 23578