Is it Legal to Drink and Drive? When is it Illegal?

Posted by Robert Berglund | Aug 09, 2017 | 0 Comments

The answer to this first question is "YES."  It is not illegal to drink alcoholic beverages and then drive a motor vehicle.  However, it is illegal if your ability to drive is impaired because of drinking alcoholic beverages.  If your ability to drive is impaired then you are Driving Under the Influence (DUI) and that what is against the law.  We turn to the CALCRIM California Jury Instructions for guidance in defining "under the influence."  A person is considered "under the influence if, as a result of drinking or consuming an alcoholic beverage and/or a drug, his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances."  If you have one or two drinks and it does not effect your ability to safely operate a motor vehicle, with the "caution of a sober person, using ordinary care, under similar circumstances" the you are not DUI and are not breaking the law.  

This leads us to the question of how do law enforcement officers, or ultimately a jury, know if a person is "under the influence" and, therefore, not exercising the care of a sober person?  We look to the jury instructions for help in answering this question.  "The manner in which a person drives is not enough by itself to establish whether the person is or is not under the influence of alcoholic beverage/or a drug, or under the combined influence of an alcoholic beverage and a drug.  However, it is a factor to be considered, in light of all the surrounding circumstances, in deciding whether the person was under the influence."  An example of driving behavior that could be evidence of a driver who is under the influence is changing lanes recklessly while speeding.  Other examples include a driver who is traveling the wrong way on the freeway, weaving between lanes, or who runs a red light at full speed.  Causing an automobile accident is also considered poor driving behavior.  Police officers also look to the driver's performance on the standardized field sobriety tests to determine whether the person is DUI and they should be placed under arrest.

We also look to the person's blood alcohol content.  If the driver's post arrest chemical test (blood or breath) result is .08 or greater there is a "presumption" that they were under the influence of alcohol at the time of the alleged offense (e.g., when they were driving).  The prosecution gets this presumption with the jury instructions as long as the chemical test was taken within 3 hours of the time of driving.  However, a good DUI Lawyer will carefully look at the breath testing equipment records and/or blood analysis records to see if there are any problems that could have resulted in the test results being higher than they actually were.  

If you are looking for a Los Angeles DUI Lawyer, CONTACT our office today for a free and confidential consultation. Berglund Law Office, P.C. specializes in representing persons arrested for DUI.  We represent our clients in court and at the DMV.  

About the Author

Robert Berglund

Attorney Robert D. Berglund specializes in representing persons arrested on suspicion of Driving Under the Influence of alcohol or marijuana...


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