Non-Alcoholic Beer and DUI Stops in California

For most adults, non-alcoholic beer alone is very unlikely to bring your blood alcohol concentration (BAC) near the 0.08 adult limit. But "non-alcoholic" usually means a little alcohol, not none, and that matters for drivers under 21, drivers on DUI probation, meaning court supervision after a DUI case, and anyone being monitored for alcohol. I am Joel Brand, and here is how this page explains the label, the stop, the checkpoint, and the choices you may face at the roadside.

What the label really means

The label tells you whether the drink may have a trace of alcohol or none at all.

Under federal labeling rules for malt beverages like beer, 27 Code of Federal Regulations section 7.65 allows the words "non-alcoholic" only if the statement "contains less than 0.5 percent (or .5%) alcohol by volume" appears right next to it. So a non-alcoholic beer can still have a small amount of alcohol.

The words "alcohol free" are different. Those words may be used only on malt beverages that contain no alcohol. A malt beverage also may not be labeled 0.0 percent unless it is labeled "alcohol free" and contains no alcohol.

In plain English, "non-alcoholic" usually means up to just under one half of one percent alcohol. "Alcohol free" or "0.0" means none. Regular beer is commonly around 5 percent.

If you quit drinking or cut back, the label matters because you may be doing the right thing for yourself and still have to explain a beer smell to an officer.

Can non-alcoholic beer put me over the adult 0.08 limit?

If you are an adult and drink non-alcoholic beer, often called "NA" beer, by itself at a normal pace, it is very unlikely to get you anywhere near the adult 0.08 limit.

The simple math helps. A 12 ounce can at the 0.5 percent maximum has about one tenth of the alcohol in a 12 ounce regular beer at 5 percent. So it takes roughly ten cans at the maximum to equal the alcohol in one regular beer, and many non-alcoholic beers contain less than the maximum.

Your body also keeps clearing alcohol while you drink. That is one reason I do not expect non-alcoholic beer alone, at a normal pace, to put most adults close to the adult limit.

A 2010 study by forensic scientists at Freiburg University in Germany, published in Forensic Science International, tested this with a large amount of non-alcoholic beer. Thierauf and colleagues had volunteers each drink 2.5 liters of non-alcoholic beer. That is a little over seven 12 ounce cans, and in Germany those drinks can contain up to 0.5 percent alcohol.

The blood and urine tests for ethanol came back negative. Ethanol is the alcohol people drink. That result fits the common sense math.

The same study had a second lesson. The urine tested positive for EtG and EtS, which are alcohol breakdown products used to check whether someone has been drinking. The results went above the common 0.1 mg/L EtG cutoff used to prove abstinence, and one volunteer had EtG build up overnight and show very high in the next morning's urine.

So a large amount of non-alcoholic beer is unlikely to show up as blood alcohol, but it can show up on the kind of urine test used for people ordered not to drink.

Why beer smell starts the questions

The smell can start the questions because non-alcoholic beer smells and tastes like beer.

An officer at a stop or checkpoint cannot tell from smell how much alcohol your drink had. The officer may smell beer on your breath or in the car, then ask what you drank. That is often the moment where a true answer needs to be short and clear.

If you roll into a checkpoint after drinking non-alcoholic beer, the officer may ask the same questions asked of any driver who smells like beer. My page on your rights at a DUI checkpoint explains the stop itself, but this page focuses on the non-alcoholic drink problem.

Do not be shocked if you get follow-up questions after saying "non-alcoholic." The officer may not know the label rules, and the Vehicle Code uses its own definition for driving laws.

Which rules apply to me at the roadside?

The roadside rules change based on your age and whether you are on DUI probation.

Adults 21 and over, not on DUI probation

For an adult who is not on DUI probation, the roadside breath test before arrest is usually a choice.

Vehicle Code section 23612(h) says the roadside preliminary alcohol screening test, often called the PAS test, is "a field sobriety test and may be used by an officer as a further investigative tool". The PAS test is the small handheld breath device used at the roadside.

Vehicle Code section 23612(i) says that if the officer decides to use the PAS test, the officer must tell you about "the person's right to refuse to take the preliminary alcohol screening test". The officer also must tell you that taking the roadside test does not satisfy the separate duty to take a blood or breath test after a lawful arrest.

If you truly drank only non-alcoholic beer, a roadside breath test should read at or near zero, and that often gives the officer a reason to let you go. It is still your choice, and it is still evidence.

Once you are lawfully arrested, the rule changes. Every driver is treated as having consented to a blood or breath test, and refusing that later test has serious license consequences. I explain that separate issue on my page about refusing the blood or breath test after arrest.

Drivers under 21

For a driver under 21, the 0.01 rule is much stricter than the adult rule.

Vehicle Code section 23136 makes it unlawful for a person under 21 to drive with a BAC of 0.01 percent or greater "as measured by a preliminary alcohol screening test or other chemical test". A chemical test means a test of breath, blood, or urine. The same underage rule says a violation is found if the person "had consumed an alcoholic beverage" and drove at 0.01 or more.

Drivers under 21 are treated as having consented to the roadside breath test. Vehicle Code section 13388 says that if an officer has reasonable cause, meaning a reason recognized by law, to believe an under-21 driver is violating the 0.01 rule, the officer "shall request" the roadside breath test if a device is right there.

A 0.01 reading or a refusal starts a DMV license action, meaning a license case at the DMV, separate from a criminal DUI case. Vehicle Code section 13353.1 says refusing or not finishing that roadside test means a one year suspension, or a longer revocation of two or three years if there are earlier offenses within 10 years.

I cover the zero tolerance rules for drivers under 21 in more detail on a separate page. There is also a separate underage alcohol driving law at 0.05 percent or more. Vehicle Code section 23140 makes that conduct unlawful, and I explain it on my page about the under-21 0.05 law.

Drivers on DUI probation

For a driver on DUI probation, a 0.01 reading can create a separate problem even if the drink was labeled non-alcoholic.

Vehicle Code section 23154 makes it unlawful for a person on DUI probation to drive at 0.01 percent or greater, measured the same way, if the person "had consumed an alcoholic beverage". Drivers in this group are also treated as having consented to the roadside breath test.

Vehicle Code section 13389 uses the same "shall request" rule for a person on DUI probation and carries the same refusal consequence. The non-alcoholic label is not a safe harbor, meaning it does not protect you by itself, because a recent sip can briefly push a breath reading up and the driving definition includes drinks with ethanol.

If you are on probation, read more about driving with alcohol while on DUI probation and what DUI probation involves before you treat non-alcoholic beer as risk-free.

Why the driving definition can still count non-alcoholic beer

The driving laws use a broader definition, so a non-alcoholic drink with any ethanol is not automatically outside the rule.

California's alcohol licensing law, Business and Professions Code section 23004, defines an "alcoholic beverage" as a drink that contains "one-half of 1 percent or more of alcohol by volume". That is why non-alcoholic beer is not regulated as an alcoholic beverage for sale.

The Vehicle Code uses a different definition for driving laws. Vehicle Code section 109 says "alcoholic beverage" includes "any liquid or solid material intended to be ingested by a person which contains ethanol". There is no half-percent floor in that definition.

By its words, the driving definition does not exempt non-alcoholic beer just because the store can sell it as non-alcoholic. I am not saying a court has decided every possible non-alcoholic beer case. I am saying the definition is broad enough that you should not rely on the label alone if a 0.01 rule, probation order, open container rule, or monitoring program applies to you.

I just finished a sip. Should I ask to wait before I blow?

Yes, if you just drank, it is reasonable to say that and ask for a few minutes before any breath test.

Alcohol left in your mouth right after a sip can make a breath reading higher than the alcohol actually in your blood for a short time. This is called mouth alcohol. I explain that defense more fully on my page about how mouth alcohol inflates breath results.

For the evidentiary breath test, which is the breath test meant to be used as proof, California Code of Regulations, Title 17, section 1221.1(b)(1) says: "The breath sample shall be collected only after fifteen continuous minutes during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked." Title 17 is the set of state regulations for alcohol testing, and I discuss it on my page about the Title 17 testing rules.

The California Supreme Court held in People v. Williams (2002) 28 Cal.4th 408 that Title 17 applies to a roadside screening device when it is used to measure alcohol concentration, not just to detect alcohol.

So if you finished a non-alcoholic beer moments before the stop, tell the officer the truth in one sentence. "I just finished a non-alcoholic beer a minute ago. May I wait a few minutes before blowing?" The officer may or may not wait, but asking is reasonable.

What should I say to the officer?

You can be polite without guessing or turning two non-alcoholic beers into two regular beers.

You do not have to answer an officer's questions about what you drank. If you choose to answer, be short and accurate. "Two non-alcoholic beers" is very different from "a couple of beers", because the second phrase sounds like regular beer and may be written that way in the report.

If the timing matters, say it. "I finished one a minute ago" gives a clear reason for a mouth alcohol concern. If you do not want to answer questions, say so calmly. Do not make up a story, and do not argue on the side of the road.

For adults, the walking, eye, and balance tests before arrest are voluntary. I cover those roadside exercises on my page about whether you can refuse field sobriety tests. The under-21 and DUI probation roadside breath rules are different, as explained above, so do not treat every test at the roadside the same way.

Open cans and bottles in the car

The safe move is to keep non-alcoholic beer cans sealed and out of reach, because the driving definition does not clearly spare them.

Vehicle Code section 23222(a) bars a driver from having, on their person while driving, an opened can or bottle "containing an alcoholic beverage". Vehicle Code section 23223 bars drivers and passengers from having one in their possession in the vehicle.

Vehicle Code section 23224 bars a person under 21 from knowingly driving a vehicle "carrying any alcoholic beverage", with narrow exceptions such as being accompanied by a parent. Because the driving definition counts any drink containing ethanol, I would not drive with an open non-alcoholic beer in the cup holder or on the seat.

I am not saying a non-alcoholic beer is always an open container violation. I am saying the definition does not exempt it, and the safe course is clear. Keep non-alcoholic beer cans sealed and out of reach, ideally in the trunk. I explain the basic rule on my page about the open container law.

Probation, EtG tests, bracelets, and IIDs

An abstinence order is a court or program order not to drink alcohol. Many DUI probation orders and monitoring programs forbid drinking any alcohol. That can include tiny amounts, even if you did not feel impaired and even if the drink came from the non-alcoholic shelf.

Urine EtG testing looks for an alcohol breakdown product after alcohol is processed by the body. The German study above is the reason I take this seriously for clients who are monitored. A large amount of non-alcoholic beer did not show ethanol in blood or urine, but it did show EtG and EtS in urine. I cover EtG urine testing in more depth on another page.

Alcohol monitoring bracelets can also react to small amounts of alcohol. If you wear one, read my page about alcohol monitoring bracelets before you assume non-alcoholic beer is harmless for your case.

An ignition interlock device, or IID, is a breath device some drivers must blow into to start the car. Mouth alcohol from a recent non-alcoholic drink can trigger an IID test. Rinsing your mouth with water and waiting before blowing into an IID is the practical habit, and I cover related problems on my page about ignition interlock false positives.

If you drink something by mistake while on probation or monitoring, keep the can or receipt. Then call your lawyer or probation officer before the issue grows.

Other non-alcoholic drinks that surprise people

Kombucha, alcohol-removed wine, and mouthwash can create problems even when you did not order a regular drink.

Kombucha and other fermented drinks can contain alcohol. Some are sold as alcoholic beverages. If you are under 21, on DUI probation, or being monitored, do not assume the health drink shelf keeps you clear of every alcohol rule.

Alcohol-removed wine is labeled the same way as non-alcoholic beer and can contain a trace of alcohol. Mouthwash with alcohol can affect a breath reading. The common thread is simple: if the product can put alcohol in your mouth or body, it can create a roadside question, a 0.01 issue, or a monitoring problem.

What to do, in order

If you are stopped after non-alcoholic beer, take one step at a time and avoid guessing.

1. Do not drink anything, non-alcoholic or not, while you are driving, and finish or seal any non-alcoholic drink before you get behind the wheel.
2. If asked what you drank and you choose to answer, use exact words like "non-alcoholic beer" or "alcohol free beer," not "a couple beers."
3. If you finished the drink moments before the stop, say that in one sentence and ask for a few minutes before blowing.
4. If you are 21 or older and not on DUI probation, know that the roadside PAS test and field sobriety tests before arrest are usually choices, but the post-arrest blood or breath test is different.
5. If you are under 21 or on DUI probation, treat non-alcoholic beer as a possible 0.01 problem and do not rely on the label as a safe harbor.
6. Keep non-alcoholic beer cans sealed and out of reach, ideally in the trunk, and do not drive with an open one.
7. Use the free case analysis on this page, or call me directly at (888) 271-6644. I answer my own phone, 24/7.