Determining who is at fault in a vehicle accident knows is often hard to determine. Other than rear-end collisions or collisions involving the obvious running of a red light or stop sign, fault is often a case of blaming the other guy.

What happens if you are legally over the BAC threshold limit of 0.08 percent and you are in an accident that you contend is the other guy’s fault. Some people believe that being DUI legally puts the fault on the drunken driver, regardless of the circumstances. But, that is not necessarily true, at least in California.

Let’s take an example: You are turning left at a green light on a road with a 35-mph speed limit. You must yield to on-coming traffic since this light does not have a green left turn arrow. Seeing an on-coming car far down the road, you assess that it is safe to make your turn. But it turns out that the on-coming car is traveling at 60 mph and therefore your assessment was incorrect. The car is unable to stop in time and hits you broadside. Who is at fault?

In this scenario, the oncoming vehicle may be determined to be at fault, especially if it is determined that the vehicle was traveling at the unlawfully high rate of speed of almost twice that of the speed limit. But let’s say, when the police arrive, they smell alcohol on your breath and you end up arrested for DUI. Now who is at fault?

The circumstances are exactly the same except that you are driving under the influence. The police, the other driver and his or her insurance company are likely to place the fault on you. Why? Because they will argue that your judgment and reaction times were impaired by the alcohol and if you were sober, you would not have judged it safe to make the left turn. Maybe that’s true, maybe not, but if the police determine that is the case, you may very well be charged with a DUI with accident, which under California law is an aggravated DUI carrying additional penalties. The potential penalties are even worse if someone was injured in the accident.

In this type of scenario, it is very important to establish that you were not at fault. The prosecutor must be able to prove that you were at fault and if the prosecutor is unable to do so, you cannot be convicted of the aggravated DUI. Your DUI defense attorney may suggest an accident reconstruction expert to investigate fault. If the results of the investigation establish the fault of the other driver or even if the results of the investigation are ambiguous, the prosecutor might decide to dismiss the aggravated charge or offer a plea bargain to a lesser offense.

The higher your BAC, the more difficult it may be to establish that you were not at fault. But even if your BAC was below the legal threshold of 0.08%, you could still find yourself charged with a DUI with accident. That is because the officer may subjectively determine that your driving was impaired by your alcohol consumption and due to that impairment, you were at fault for the accident.

If you or someone you care about has been arrested for DUI or an aggravated DUI, contact William Weinberg for a complimentary consultation. Mr. Weinberg has been defending individuals arrested for DUI in Orange County for almost 25 years. He can be reached at his Irvine office at (949) 474-8008 or by email at

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