Yes, you can.
California Vehicle Code Section 23152(b) prohibits driving a motor vehicle if your blood alcohol content (BAC) is 0.08% or higher at the time of driving. This is what most people commonly refer to as driving under the influence. Under this statute, the Legislature has made a determination that when a person’s BAC is at least 0.08%, it is dangerous to operate a motor vehicle.
However, there is another code section that is located right next to this one in the Vehicle Code, and it’s commonly referred to by those in law enforcement as “the (a) count.”
What is “the (a) count” ?
The “(a) count” derives its name from California Vehicle Code Section 23152(a), which makes it a crime to operate a motor vehicle while under the influence of drugs or alcohol, or both. Under this code section, a driver can be arrested and convicted if it can be proven that the person is under the influence. How will that be proven? Normally, through Field Sobriety Tests (FSTs) and from evidence of bad driving. If the officer has reason to believe that the person is under the influence and cannot safely operate the vehicle, the officer can (and often will) make an arrest. Of course, if a person’s BAC is higher than a 0.08%, then even though both counts will be charged, the (a) count will be made relatively meaningless. But, if the person’s BAC was 0.05%, the person can still be charged with the (a) count and can still face the same consequences of the (b) count. It will be up to the discretion of the officer at the time.