Yes. California’s basic DUI law does not require a 0.08 percent result at all, and several other rules use a lower number for specific drivers. A test under 0.08 percent narrows a case; it does not end it.

The core DUI law has no number

Vehicle Code section 23152(a) makes it unlawful to drive while under the influence of any alcoholic beverage. No blood alcohol percentage appears in that subsection. The 0.08 percent offense is a separate charge under subsection (b). CALCRIM No. 2110, the jury instruction for the (a) charge, defines being under the influence as having your mental or physical abilities so impaired that you can no longer drive “with the caution of a sober person, using ordinary care, under similar circumstances.” It does not require any particular test result. Prosecutors can build an (a) case on evidence such as driving pattern, field sobriety test performance, and the officer’s observations, with or without a chemical test, although the instruction also tells jurors that the way a person drove is not enough by itself to establish whether they were under the influence.

What a below-0.08 test result actually does

A chemical test result changes which presumption applies, not whether a case can be filed. Under Vehicle Code section 23610(a):

  • Under 0.05 percent, the law presumes you were not under the influence. Section 23610(c) still allows other evidence on the question, so the prosecution can try to overcome that presumption.
  • From 0.05 percent up to just under 0.08 percent, no presumption applies in either direction, but the result may be considered together with other evidence of impairment.
  • At 0.08 percent or more, the statute presumes you were under the influence.

At trial, CALCRIM No. 2110 presents the 0.08 percent presumption to jurors only as an inference they may, but are not required to, draw, and its bench notes say not to give even that sentence when the result falls between 0.05 and just under 0.08 percent. A case in that range turns on the other evidence of impairment, with the number weighed alongside it. CALCRIM No. 2111, the instruction for the separate 0.08 percent charge, requires proof that your level was 0.08 percent or more when you drove.

Lower limits for some drivers

Three other rules apply at levels below 0.08 percent:

  • Drivers under 21. Vehicle Code section 23140 makes it unlawful for a driver under 21 to drive with 0.05 percent or more. A separate statute, Vehicle Code section 23136, sets a 0.01 percent threshold for drivers under 21 and states that it does not bar prosecution under 23152 or 23153 as well. For the fuller underage framework, see underage DUI.
  • Commercial vehicles. Section 23152(d) sets a 0.04 percent limit for driving a commercial motor vehicle. See commercial driver CDL DUI for how that applies.
  • Driving with a paying passenger. Section 23152(e), in effect since July 1, 2018, sets the same 0.04 percent limit when a passenger for hire is in the vehicle.

What this means for your case

A below-0.08 result is a real advantage. It means there is no presumption that you were under the influence, a result under 0.05 percent creates a presumption that you were not, and the 23152(b) charge, which requires 0.08 percent or more at the time of driving, becomes harder to prove. It does not automatically end a case built on subsection (a), and it does not help if one of the lower limits above applies to you. What decides the outcome is the full evidentiary picture: driving pattern, field sobriety performance, the officer’s observations, and how the test itself was administered. For a related but different problem, a test that reads at or above 0.08 percent when your level at the actual time of driving may have been lower, see rising blood alcohol defense. If a DUI charge goes forward, the penalty ranges are covered on California DUI laws.

If you are facing a DUI charge with a test result under 0.08 percent, Law Offices of David S. Chesley can review your specific numbers and the rest of the evidence. Call (800) 755-5174 to discuss your case.