DUI in California with BAC of .04

My question involves criminal law for the state of: Califorinia

I recently got pulled over and charged with a DUI in the state of California. I do not know the results of my handheld breathalyzer test but the CHP officer that arrested me did however state I was right on the limit. Anyway to the point, when I was again tested at the station I blew a .04. I indeed did have 2 beers that night but did not at all feel intoxicated and felt that I passed the FST's other than the handheld breathalyzer. I even overheard the CHP officer in a conversation with his superior asking if he should let me go, yet I was still booked and charger with a DUI after spending 12 hours in jail. My DMV trial was canceled due to them not receiving the information needed from the CHP. According to my lawyer this is a good thing because at least I still have my license the problem is that I live on a military base where my driving has been suspended due to the pending civil court case, so technically I cant drive being that my car and I reside on base, so no driving on base means no driving in town. Is it possible for this to get thrown out or am I going to get my license suspended for a year beacause of a .04 BAC?.

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Quoting mrnealy

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My question involves criminal law for the state of: Califorinia

I recently got pulled over and charged with a DUI in the state of California. I do not know the results of my handheld breathalyzer test but the CHP officer that arrested me did however state I was right on the limit. Anyway to the point, when I was again tested at the station I blew a .04. I indeed did have 2 beers that night but did not at all feel intoxicated and felt that I passed the FST's other than the handheld breathalyzer. I even overheard the CHP officer in a conversation with his superior asking if he should let me go, yet I was still booked and charger with a DUI after spending 12 hours in jail. My DMV trial was canceled due to them not receiving the information needed from the CHP. According to my lawyer this is a good thing because at least I still have my license the problem is that I live on a military base where my driving has been suspended due to the pending civil court case, so technically I cant drive being that my car and I reside on base, so no driving on base means no driving in town. Is it possible for this to get thrown out or am I going to get my license suspended for a year beacause of a .04 BAC?.

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The DMV did not receive the required paperwork because the DS-367 (Notice of Suspension) form only applies to .08 BAC at the time of the chemical test, you were .04 BAC so as far as the DMV is concerned, your license is still valid. Criminal court may still suspend it, but you may want to wait and see if the DA proceeds with a 23152 (a) VC only case.

If you were at the legal limit when you were PAS'ed, the CHP did the right thing by removing you from the road, for your safety (literal and financial), and other drivers. It may put you in a jam with your command until it's sorted out at the moment. In the mean time, do you have a bus system on base? I used to use the bus alot to get out to town. If not, you should have some good friends in your unit who should be willing to help you out. I know it's not the most fun to rely on other people to get you around, but
what else is there for you?

Good luck and thank you for your service.

Thankyou for your response. So today was my pre trial and I was offered a wet reckless Im still unsure of what this means but I knkow its better than a DUI. I am trying to do some research as to what exactly this wet reckless charge will mean to me. Is my license still suspended on base? Is this actually stiall considered a alcohol related charge? DOes anyone know this? Thankyou ahead of time for your answers.

You can start here

I'm sure to that our resident expert Carl (SoCal Law Enforcement Officer) can tell you exactly what it is, in detail.

Thank you all for your input, and help. its really appreciated that you posted back so quickly. The link was awesome by the way Msta,it explained what I needed thanks alot I appreciate it. Now just to figure out if I take the plea bargain or keep fighting it. In the end the lesson was learned. I am already out 7500 in lawyer fees, and havent been able to drive on base for 2 months now. Good life lesson I guess.

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Quoting mrnealy

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Thankyou for your response. So today was my pre trial and I was offered a wet reckless Im still unsure of what this means but I knkow its better than a DUI. I am trying to do some research as to what exactly this wet reckless charge will mean to me. Is my license still suspended on base? Is this actually stiall considered a alcohol related charge? DOes anyone know this? Thankyou ahead of time for your answers.

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heck no. i wouldn't take it if you only blowed a .04. Tell them " See ya in court"

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Quoting mrnealy

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I recently got pulled over and charged with a DUI in the state of California.

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How old are you? Were you arrested for CVC 23152(a) or for CVC 23136?

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Anyway to the point, when I was again tested at the station I blew a .04. I indeed did have 2 beers that night but did not at all feel intoxicated and felt that I passed the FST's other than the handheld breathalyzer.

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At .04 the legal presumption is that you are NOT impaired. However, if your FSTs or driving indicated impairment, you could be in trouble. Even at such a low BAC if you drank in conjunction with medication or illicit drugs, they might have had what is known as a synergistic effect thus increasing the effects of the alcohol AND the medication/drugs.

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My DMV trial was canceled due to them not receiving the information needed from the CHP.

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That was an administrative hearing nto a trial ... and, as Sniper pointed out, with a BAC of .04 the DS 367 (aka 'Admin per Se') would not have generally been submitted to the DMV. Even if it had, since the results were under .08, you'd have prevailed.

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According to my lawyer this is a good thing because at least I still have my license the problem is that I live on a military base where my driving has been suspended due to the pending civil court case,

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To be clear on the termins, it is a CRIMINAL court case - even if it is a civilian one. A CIVIL court handles different issues than a criminal court.

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Is it possible for this to get thrown out or am I going to get my license suspended for a year beacause of a .04 BAC?.

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When/if the matter is dropped or you are acquitted, then I suspect you can bring the paperwork to the Provost Marshal and advise them.

What does your attorney say about the "wet reckless" offer (that's CVC 23103.5)?

And, if you paid $7,500 and have not even gone to trial, I suspect you got ripped. Unless, of course, that amount was for a full trial defense in which case you might be eligible for part of it back if you do nto go to trial ... you'll have to ask.

- Carl

$7500??
yea u got ripped off

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Quoting cdwjava

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How old are you? Were you arrested for CVC 23152(a) or for CVC 23136?

Im 23 and I was arrested for 23152(a) and (b), which I have been told is somewhat of a standard.

At .04 the legal presumption is that you are NOT impaired. However, if your FSTs or driving indicated impairment, you could be in trouble. Even at such a low BAC if you drank in conjunction with medication or illicit drugs, they might have had what is known as a synergistic effect thus increasing the effects of the alcohol AND the medication/drugs.

I was on no other meds or drugs. I dont know what the FSTs indicated yet because the police report has yet to make it to my lawyer.


That was an administrative hearing nto a trial ... and, as Sniper pointed out, with a BAC of .04 the DS 367 (aka 'Admin per Se') would not have generally been submitted to the DMV. Even if it had, since the results were under .08, you'd have prevailed.


To be clear on the termins, it is a CRIMINAL court case - even if it is a civilian one. A CIVIL court handles different issues than a criminal court.


When/if the matter is dropped or you are acquitted, then I suspect you can bring the paperwork to the Provost Marshal and advise them.

I found out that this is the case.

What does your attorney say about the "wet reckless" offer (that's CVC 23103.5)?

He says on what evidence he has now its not per say a "bad offer" but if we take it to court theres a good chance of winning, but on the other hand he is a lawyer.

And, if you paid $7,500 and have not even gone to trial, I suspect you got ripped. Unless, of course, that amount was for a full trial defense in which case you might be eligible for part of it back if you do nto go to trial ... you'll have to ask.

Yes this price includes everything to include the full trial.

- Carl

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Thanks for all of your help and answers.

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Quoting mrnealy

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Im 23 and I was arrested for 23152(a) and (b), which I have been told is somewhat of a standard.

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Yes. You have been charged with driving impaired and with driving with a BAC of .08 or higher. Though, if you're BAC was .04, I suspect that the (b) section will be dropped.

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He says on what evidence he has now its not per say a "bad offer" but if we take it to court theres a good chance of winning, but on the other hand he is a lawyer.

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I'd feel more confidence in your place if the lawyer had actually read the police report before stating there was a "good chance" of winning.


- Carl