Last Updated on July 2, 2025
It’s common for people to still feel sober after only one or two drinks, even when their Blood Alcohol Content (BAC) is over 0.08%. But when someone’s BAC is nearly twice that, almost everyone can recognize that they are too intoxicated to drive, meaning those who choose to drive at this point demonstrate an increased level of recklessness. Drunk driving becomes dramatically more dangerous as a person’s BAC rises, meaning these drivers also present a greater risk to others on the road. For these reasons, California enforces enhanced penalties when a driver accused of DUI had an excessively high BAC, notably any number above 0.15% and, even more increased penalties above 0.20%. Fortunately, it is possible to fight these sentencing enhancements with the help of a skilled DUI defense attorney.
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What is a High BAC for a DUI?
If your breathalyzer or blood test result is above 0.15, the prosecution will most likely try to add on an enhanced DUI sentence for the excessive BAC level. These BAC penalty enhancements are defined under California Vehicle Code section 23578 (VC). An additional enhancement will be added if a driver’s BAC was above .20 under Vehicle Code section 23538(b)(1) (VC).
Notably, while juveniles are subject to a maximum 0.01% BAC under the state’s Zero tolerance laws (enough to put them over the limit with one kombucha or a single dose of many cough syrups), they still face the same penalties for these enhancements if they are caught with a BAC above 0.15 or 0.20. The same goes for commercial drivers with particularly high BACs, though their maximum BAC while driving is only 0.04%.
These excessive-use penalties are not typically used in DUI cases involving drugs, including marijuana, because, unlike with alcohol use, there is no legal limit to how many drugs a person can safely consume before driving.
In cases where a drunk driver is convicted of driving with a BAC above 0.15, the defendant will be forced to perform public work service for a few days on top of their other DUI penalties. Additionally, if the driver’s BAC was above 0.20, the defendant will be required to attend a nine-month alcohol treatment course instead of the standard three-month DUI program most people get for a first-time conviction.
While these two sentencing DUI enhancements are mandatory, a judge may also choose to add additional penalties to the sentence, such as:
- mandatory installation of an ignition interlock device for the next 3 years
- residential treatment
- lengthier jail sentences
- attendance at a MADD victim attendance panel
- mandatory AA meetings
- increased fines
- longer probation periods and stricter probation terms
- mandatory use of an alcohol monitoring bracelet
- lengthier period of license suspension
What Happens if You Refuse to Take a Breath or Blood Test?
Interestingly, those who violate the state’s implied consent law by refusing to take a blood or breath test are charged under the same statute, 23578 (VC). The basic idea for this is that if the punishment for refusing to take a chemical test is similar to that for driving with a high blood alcohol content, people will be more likely to submit to the test rather than weigh their options based on how drunk they are.
The penalty for first-time test refusal is a minimum of two days of jail time plus a one-year license suspension at the DMV without the opportunity to obtain a restricted license. Notably, those who refuse chemical tests in San Diego city limits are often charged with the crime by the City Attorney, while those who do so in the rest of the county often are not charged by the District Attorney.
Note that you have the right to refuse to take a breath test in favor of a blood test, or vice versa —but you cannot legally refuse to do either.
There are other charges drunk drivers may face for driving with an excessively high BAC. Anyone caught speeding at more than 20 miles an hour above the speed limit on a public road or 30 miles an hour on a freeway will face an additional driving under the influence enhancement for excessive speeding. This offense carries a minimum of 60 days in jail in addition to any other DUI sentencing.
If someone caught driving under the influence of drugs or alcohol had a child under 14 in the car with them at the time of their arrest, they could also face a sentencing enhancement. In this case, the penalty is a minimum of 48 hours in jail.
You Can Fight the Charges
While sentencing enhancements carry mandatory penalties, the enhancements themselves are not mandatory, even with a very elevated BAC. Even if you cannot beat your DUI charges entirely, the right drunk driving attorney may at least help you avoid these enhancements and may even be able to have the charges plead down to a wet reckless. The District Attorney, who prosecutes misdemeanor DUI cases in the North, South, and East San Diego County courts, is often willing to agree to a lower blood alcohol result to avoid the enhancements.
The chances of avoiding these enhancements are much higher if they are anywhere near the cut-off line. For example, it is much easier to have a judge decide against adding an enhancement if your BAC was .15% than if it was .19%.
Common defenses to these enhancements and other charges include arguing that the officer failed to administer the DUI test properly, that the officer waited too long to administer the test (the rising alcohol defense), or the blood test sample became contaminated.
Whatever the circumstances of your arrest, a drunk driving attorney can help you fight the charges. If you have been accused of driving under the influence and may be facing enhancements related to your blood alcohol content, please call (760) 643-4050 or (858) 486-3024 to schedule a free initial consultation with Peter M. Liss.
Fight for your freedom without draining your wallet!
