Can an officer charge me for DUI even if my BAC did not reach the threshold? 64 Answers as of June 02, 2013

An officer stopped me on the highway because he suspected me of driving while intoxicated. We did the breath analyzer and my BAC did not hit the threshold. He asked me to do some physical tasks. I was able to walk a straight line, etc. He still gave me a ticket. Can I contest this especially since my alcohol level was not 0.08%. Is is legal for the officer charge me for DUI even if my BAC did not reach the threshold?

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Cornish, Crowley, Rockafellow, & Sartz, PLLC
Cornish, Crowley, Rockafellow, & Sartz, PLLC | Jacob Peter Sartz IV
With any criminal charge, I strongly urge you to get a lawyer. There can be long-term consequences and you are presumed innocent until proven guilty. Simply because a person is charged does not mean that they are guilty of any offense. The prosecutor must prove guilt beyond a reasonable doubt. You have a right to legal counsel and should not be afraid to exercise your rights. You need an experienced OUI attorney to carefully review your file. If the stop was not valid, they may be able to file a motion to suppress the evidence. These motions typically require a written motion and hearing, with testimony, argued before the judge. If the motion is granted, the evidence would be suppressed and the prosecutor's case would be weakened substantially; however, it ultimately depends on the facts.
Answer Applies to: Michigan
Replied: 6/11/2012
Law Office of Thomas A. Medford, Jr., PC
Law Office of Thomas A. Medford, Jr., PC | Thomas A. Medford, Jr.
You can contest the charge no matter what but you must realize that in the District of Columbia a conviction can be sustained with a BAC of 0.05.
Answer Applies to: District of Columbia
Replied: 3/21/2012
Law Office of Peter F. Goldscheider
Law Office of Peter F. Goldscheider | Peter Goldscheider
Yes, if he believes you were under the influence.
Answer Applies to: California
Replied: 5/30/2013
Law Office of Phillip Weiser
Law Office of Phillip Weiser | Phillip L. Weiser
A person can be charged with a DUI even when his tests are below the .08 limit. If you were judged to be impaired, then you could be charged.
Answer Applies to: Kansas
Replied: 3/16/2012
Law Office of Richard Williams
Law Office of Richard Williams | Richard Williams
Whether you blew .08 or lower does not mean that you cannot be convicted of DUI. You can be convicted of DUI with a reading as low as .05. The proof of a DUI needed for conviction is the officer's opinion that you consumed alcohol (or drugs) to the point that you were too intoxicated to safely operate a motor vehicle on the public highways. The testimony is the officer's opinion and is most subjective.
Answer Applies to: Alabama
Replied: 3/16/2012
    Law Office of Brian K. Wanerman
    Law Office of Brian K. Wanerman | Brian K. Wanerman
    Yes. If your BAC was below .08%, you can still be charged with DUI. The prosecution will just have to prove that your judgment was impaired to a degree that you couldn't safely operate a motor vehicle. Below .08%, impairment is not presumed. But, the prosecution can present other evidence to prove impairment (erratic driving, bloodshot eyes, stumbling, slurred speech, "failing" field sobriety "tests", etc.). If you've been charged or think you will be, you should consult an attorney.
    Answer Applies to: California
    Replied: 3/15/2012
    Reeves Law Firm, P.C.
    Reeves Law Firm, P.C. | Roy L. Reeves
    Yes, you can contest it, and yes, it is legal for the cop to write the citation. It is his word against yours and he has subjectively graded your performance on the FSTs. Get a lawyer, get one now. Get copies of the video, the test results, etc. before they disappear (it is a sad fact that in the last year, I have had more than one video not make it to evidence, just argued before the Dallas Court of Appeals on that very issue in fact). In many years of criminal work, I have never had a video show up that helped my client - every time the cop remembers to put the video in evidence, it is bad for the client or at least not helpful (one tape showed strong wind and a thunderstorm blowing in though not raining yet and the cop had claimed he could smell the strong smell of alcohol emitting from my client breathe. On the other hand, every time I have had a client whose version of the facts indicates that the video will be beneficial to our case (i.e.: BAC is under .08 and the only evidence is the Field Sobriety Tests [FSTs]) the video mysteriously fails to work, or the video is accidentally taped over.
    Answer Applies to: Texas
    Replied: 3/15/2012
    Law Offices of Eric J. Bell | Eric J. Bell
    Yes, you can be charged with DUI if you blew under .08.
    Answer Applies to: Illinois
    Replied: 3/14/2012
    Freeborn Law Offices, P.S.
    Freeborn Law Offices, P.S. | Steve Freeborn
    Sure, you can still be charged. The DUI statute reads "having a breath level of .08 or above and/or the operation of a motor vehicle being affected to an appreciable degree". If your driving was so effected and you had consumed alcohol, you can be charged. How strong the case is against you, I have no idea. Do not assume this case will somehow "disappear" because your BAC was under .08.
    Answer Applies to: Washington
    Replied: 3/14/2012
    Law Office of Jared Altman
    Law Office of Jared Altman | Jared Altman
    Yes, You can still be charged. You'll have to fight it.
    Answer Applies to: New York
    Replied: 3/14/2012
    The Sarbaugh Law Firm
    The Sarbaugh Law Firm | Bruce W. Sarbaugh
    Yes, you can still be charged with a DUI even if your BAC was below .08%. The specific blood/alcohol level is only one of many factors that are relevant to a determination of whether you were intoxicated to the point that you were unable to safely operate a motor vehicle (which is the legal definition of DUI). Even if the facts of your case do not support a charge of DUI, the officer could still charge you with the lesser offense of Driving While Ability Impaired, particularly is your BAC was over .05%.
    Answer Applies to: Colorado
    Replied: 3/14/2012
    Law Office of Eric Sterkenburg
    Law Office of Eric Sterkenburg | Eric Sterkenburg
    There are two code sections for a DUI. One section reads that you have a BAL of 0.08 or higher. The other section does not have a BAL level requirement. The one without the BAL is based on the officer's observations and a blood or urine test. Under this section it is legal for an officer to issue a citation for a DUI even if you had nothing to drink.
    Answer Applies to: California
    Replied: 3/14/2012
    Thomas J. Tomko Attorney At law
    Thomas J. Tomko Attorney At law | Thomas J. Tomko
    Thank you for your inquiry You can be charged with OWI in the absence of a breathalyer. Certain facts concerning your case will determine what a jury will consider. This will include the observed driving, field sobriety, the presence of alcohol, the odor of intoxicants, and all other observations and admissions.
    Answer Applies to: Michigan
    Replied: 3/14/2012
    Hynum Law Office, LLC
    Hynum Law Office, LLC | G. Wayne Hynum
    Although its not clear from your question, what I understand is that the officer gave you a field breath test which registered less than 0.08% but charged you with "common law" DUI. On a common law DUI charge in Mississippi the officer attempts to prove your guilt by testifying that you had slurred speech, could not walk straight, etc. However, if you registered less than 0.08% on the field breath test and the officer did not give you the intoxylizer test back at the station, I'd say you have a good chance of beating that DUI charge with a good lawyer.
    Answer Applies to: Mississippi
    Replied: 3/14/2012
    Law Office of Brendan M. Kelly
    Law Office of Brendan M. Kelly | Brendan M. Kelly
    Under the law a test over .08% gives a presumption of intoxication. A lower test does not, but they can still charge you based on the officers observations of the stop and arrest. Depending on the evidence, it would be unlikely the could prove DUI. If you are under 21 then the legal limit for DUI is .02%.
    Answer Applies to: Nebraska
    Replied: 3/14/2012
    Craig W. Elhart, P.C.
    Craig W. Elhart, P.C. | Craig Elhart
    You can be charged with a DUI, however, you have a good case to defend. Definitively seek the assistance of an attorney.
    Answer Applies to: Michigan
    Replied: 3/14/2012
    The Pilgrim Law Firm
    The Pilgrim Law Firm | Marc Pilgrim
    Officers can charge you even if you do not get a breath reading of .o8% or higher. Since you did not blow a high reading, it is essential you contact a good attorney to represent you.
    Answer Applies to: Georgia
    Replied: 3/14/2012
    Bensmochan & Poghosyan, LLP
    Bensmochan & Poghosyan, LLP | Ruzanna Poghosyan
    Yes. Look at your ticket. You probably have 23152(a) VC written on your ticket. Usually, when you get arrested for DUI in California and a breathalyzer shows BAC below .08%, you are issued a ticket for violation of California Vehicle Code Section 23152(a). This code section does not require BAC of 0.08% or greater;?it only requires ?driving under the influence of alcohol and/or drugs. Were you arrested after the completion of the Filed Sobriety Test? Were you asked to submit to a chemical test (blood or breath) after your arrest? Did you submit to a chemical test? Which one? If you chose the blood test, the results will be available in a few weeks. If your BAC comes out 0.08% or more, prosecutors will charge you with violation of Vehicle Code Section 23153 (a) *and* Section 23153(b).
    Answer Applies to: California
    Replied: 3/14/2012
    McClendon Owens Melia McBreen LLP
    McClendon Owens Melia McBreen LLP | Richard L. McBreen III
    Yes, you can contest the charge, and yes, it is legal for the state to proceed on charges even though your breath test result showed you were under the legal limit. Even though the state can legally proceed, does not mean that you shouldn't fight this charge. The fact that you agreed to take the test and were found to be under the legal limit definitely hurts the state's case, and improves your position in putting together a defense to the charge.
    Answer Applies to: Oregon
    Replied: 3/14/2012
    Anderson Law Office
    Anderson Law Office | Scott L. Anderson
    Yes you can be charged when under .08 with DUI because it is a specific statute to be over .08. Please seek representation as soon as possible since a good attorney should be able to use your lower reading to your advantage.
    Answer Applies to: Minnesota
    Replied: 3/14/2012
    Law Offices of John Carney
    Law Offices of John Carney | John Carney
    You can be charged with a BAC over .02 and you will probably be convicted of the DWUI violation unless you blew .o2 or .03 and the judge determines that you were not impaired to any degree. You should retain a good criminal lawyer or call my firm for a free consultation to get the best possible disposition in this case.
    Answer Applies to: New York
    Replied: 3/14/2012
    H. Scott Basham, Attorney at Law, P.C. | H. Scott Basham
    Yes. Even if your BAC was not .08% or higher, you can be convicted of DUI in Georgia if you are under the influence of alcohol to the extent that it is "less safe" for you to drive when you are sober. The "less safe" provision also applies to illegal drugs of any kind, as well as legal ones (whether validly prescribed to you or over the counter).
    Answer Applies to: Georgia
    Replied: 3/14/2012
    Timothy J. Thill P.C.
    Timothy J. Thill P.C. | Timothy J. Thill
    The officer can arrest you for DUi, and charge you, even if you do not register .08 on the breath test. However, you should retain counsel to represent you in court, and you might be able to beat the case on trial or get a reduced charge, such as reckless driving. Remember that the testimony of the arresting officer is very important, you might feel you did good on the field sobriety tests, many people under the influence feel they were okay, but in actuality were pretty high and that could be the reason the officer charged you.
    Answer Applies to: Illinois
    Replied: 3/14/2012
    Law Office of Andrew Roberts
    Law Office of Andrew Roberts | Andrew Stephen Roberts
    Yes- bac is only one aspect of driving under the influence or impaired. The 23152 (a) VC count is driving while impaired. This matter should be fought. You need an attorney!
    Answer Applies to: California
    Replied: 3/14/2012
    Gonzalez Law Associates P.C.
    Gonzalez Law Associates P.C. | Carlos Gonzalez
    Yes, this is legal. NY recognizes another charge of driving while ability impaired, if you're above .05 but below .08. Get yourself a good attorney asap.
    Answer Applies to: New York
    Replied: 3/14/2012
    Michael Breczinski
    Michael Breczinski | Michael Breczinski
    He could possibly charge you with impaired driving which does not have a threshold. It is a lesser included offense under DUI. You need a good attorney.
    Answer Applies to: Michigan
    Replied: 3/14/2012
    Law Office of Michael Bialys THE DUI MAN
    Law Office of Michael Bialys THE DUI MAN | Michael Bialys
    you can still be charged for a Dui even if your BAC was less than .08. The cases however can often be dismissed if handled properly.
    Answer Applies to: California
    Replied: 3/14/2012
    Lawrence Lewis
    Lawrence Lewis | Lawrence Lewis, PC
    The .08 is not the floor it is the ceiling. Yes, you can be charged. The officer determined based on your fields and breath result (below .08) that you were too impaired to drive safely. You can challenge his assessment, but you need to retain an attorney.
    Answer Applies to: Georgia
    Replied: 3/14/2012
    Law Offices of James A Bates
    Law Offices of James A Bates | James A Bates
    If you are under 21 you are in trouble. Otherwise, fight this.
    Answer Applies to: California
    Replied: 3/14/2012
    The Law Office of Kevin O'Grady
    The Law Office of Kevin O'Grady | Kevin O'Grady
    There are multiple ways to be charged with DUI. One is DUI by impairment; that is, no matter what your BrAC, you were impaired to a sufficient degree under the law by reason of alcohol or drugs. A second DUI charge is, regardless of whether you were impaired, your BrAC was .08 or greater. Finally, there are other crimes for persons under 21 who have alcohol in their system while driving. So, yes it is possible to be charged with only DUI impairment if your BrAC was les than .08 If you want to fight the charge, hire an aggressive attorney quickly.
    Answer Applies to: Hawaii
    Replied: 3/14/2012
    Quitmeier Law Firm, P.C.
    Quitmeier Law Firm, P.C. | William M. Quitmeier
    Yes, but you have a very good chance of beating the charge.
    Answer Applies to: Missouri
    Replied: 3/14/2012
    T.K. Byrne | Timothy K. Byrne
    He charged you under Mississippi "common law drunk". That is the choice available to the officer if the BAC is below .08. It will be the officer's testimony against your statement. Retain counsel and discuss if you think you can prevail under those facts. Relevant will be your ability to overcome the officer's description of your behavior and movement or gait.
    Answer Applies to: Mississippi
    Replied: 3/14/2012
    Kelly A. Broadbent, Esq.
    Kelly A. Broadbent, Esq. | Kelly Broadbent
    In Massachusetts, you can be charged for having a BAC of .08 or over or for driving while intoxicated. The fact that you took the test and did not reach .08 can be evidence you bring in your defense that you were not intoxicated.
    Answer Applies to: Massachusetts
    Replied: 3/14/2012
    Betts Legal Services
    Betts Legal Services | Shawn M. Betts
    You do not have to be over .08 to be charged with DWI. If the State can prove that the alcohol impaired your ability to operate the vehicle, which can be done with your admissions, test results, indicia of impairment, and/or your performance on field sobriety tests, you could be convicted, but the charge in that situation would usually be dropped or at least reduced to a careless driving barring unusual circumstances.
    Answer Applies to: Minnesota
    Replied: 3/14/2012
    Charles M. Schiff, Attorney at Law
    Charles M. Schiff, Attorney at Law | Charles M. Schiff
    Yes, you can be charged with DUI without a test. The state's case is substantially weaker without the test result.
    Answer Applies to: Minnesota
    Replied: 3/14/2012
    Michael E. Stowell, Attorney at Law | Michael E. Stowell
    The statute (RCW46.61.502) provides two ways that a person can be found guilty of DUI:a. have a blood level of .08 within 2 hours of having driven;b. drive while under the influence of alcohol or other drug.What this boils down to is that a blood or breath test of .08 is not necessary to be charged with DUI. If you do not perform the field sobriety tests adequately you can be charged. DUI is harder to prove without the breath/blood test but it can still happen. This electronic transmission and any documents accompanying this electronic transmission contain confidential information belonging to the sender. This information may be legally privileged. The information is intended only for the use of the individual or entity named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on or regarding the contents of this electronically transmitted information is strictly prohibited.
    Answer Applies to: Washington
    Replied: 3/14/2012
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    Yes, but it would appear you may have the possibility of a strong defense.
    Answer Applies to: Michigan
    Replied: 3/14/2012
    Law Office of Charles J. Block
    Law Office of Charles J. Block | Charles J. Block
    Yes - bases upon your physicals.
    Answer Applies to: New Jersey
    Replied: 3/14/2012
    Glass Defense Firm
    Glass Defense Firm | Jason M. Glass
    In West Virginia, as in most states, you do not have to have a blood alcohol level above 0.08 to be charged with a DUI. The state can still proceed with the charge if they can show by other means, i.e. field sobriety tests and erratic driving patterns for instance, that you were impaired. A BAC between .05 and .08 can still be considered as evidence that you had consumed alcohol and you may be impaired. A BAC below .05 and there is a presumption that you are not impaired.
    Answer Applies to: West Virginia
    Replied: 3/14/2012
    Klisz Law Office, PLLC
    Klisz Law Office, PLLC | Timothy J. Klisz
    Yes it is legal because it could be based on bad driving. Being under does really help in negotiations with the right lawyer.
    Answer Applies to: Michigan
    Replied: 3/14/2012
    Law Office of Edward J. Blum
    Law Office of Edward J. Blum | Edward J. Blum
    He can arrest you under the impaired count (VC 23152(a)) even if your BAC is less than .08. It's very winnable. It depends on your driving. It matters if you were pulled over for bad driving or some mechanical defect.
    Answer Applies to: California
    Replied: 3/13/2012
    Miller & Harrison, LLC
    Miller & Harrison, LLC | David Harrison
    DUI depends on your ability to operate your car and the amount of alcohol in your system just creates an inference you are unable to operate your car, so yes, you can be charged with DUI in this situation.
    Answer Applies to: Colorado
    Replied: 3/13/2012
    The Law Office of Stephanie M. Arrache
    The Law Office of Stephanie M. Arrache | Stephanie Arrache
    Are you under 21? If so, then anything in your blood is enough. If you're over 21 and you're BAC was under .08, then you should not be charged.
    Answer Applies to: California
    Replied: 3/13/2012
    Dichter Law Office, PLLC
    Dichter Law Office, PLLC | Jonathan Dichter
    There are two ways to get a DUI. First is to be above .08. Second is have your ability to drive be affected to any degree by alcohol.
    Answer Applies to: Washington
    Replied: 3/13/2012
    Palumbo and Kosofsky
    Palumbo and Kosofsky | Michael Palumbo
    Yes, you can be arrested even if you do not hit the "per se" limit and yes you can defend yourself even if you did hit the "per se" limit.
    Answer Applies to: New York
    Replied: 3/13/2012
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    Of course. Did you really think he couldn't, despite him doing so and having all the pre-printed forms from the PD and courts. DUI is impaired driving while under the influence of any substance, legal or not, which is in the opinion of the officer. If your BA was .08 or higher, you would also be charged with DUI over the legal limit. Two criminal charges for the same conduct. When arrested for DUI, whether alcohol or drugs, then upon release from jail or booking the defendant is given documents that include a notice that you have only ten days to file a request with DMV for a hearing on an appeal of an automatic suspension of your license imposed by DMV. That is separate and runs consecutively with any suspension that may be imposed by the court. Contact DMV and do so, timely, then appear at your scheduled DMV appeal hearing and present any supporting evidence and testimony
    Answer Applies to: California
    Replied: 3/13/2012
    Healan Law Offices
    Healan Law Offices | William D. Healan, III
    You can be charged with DUI even if your BAC is under the limit but it is pretty hard for a prosecutor to win a conviction in that situation.
    Answer Applies to: Georgia
    Replied: 3/13/2012
    Law Office of Joe Dane
    Law Office of Joe Dane | Joe Dane
    There are two DUI charges - 23152(a) and 23152(b). The (a) count makes it illegal to drive under the influence - at any level. You can be charged with DUI, even below 0.08%. The second charge - 23152(b) makes it illegal to drive with 0.08% or more in your system, no matter if you were driving perfectly. Having said that, any DUI case that is below 0.08% has potential defenses. You're going to need a lawyer though.
    Answer Applies to: California
    Replied: 3/13/2012
    Andersen Law PLLC
    Andersen Law PLLC | Craig Andersen
    That depends on a whole slew of facts you didn't discuss. Where was the breath test administered? Which one was it? How old are you? Do you have a commercial drivers license? The BAC limits are different for different classes of driver. Under 21 the BAC limit is .02. If you are a truck driver, the limit is .04 whether you are driving your truck at the time of the stop or not. One can also be convicted of DUI if he or she is driving while impaired even if the breath test is under the legal limit. Bear in mind that it is the prosecutor who decides what to charge; not the officer. If you have a low BAC, you need to hire a DUI defense attorney because you may get a better plea deal or even be acquitted.
    Answer Applies to: Washington
    Replied: 3/13/2012
    Law Office of Patrick E. Donovan, PLLC
    Law Office of Patrick E. Donovan, PLLC | Patrick E. Donovan
    In NH, the State must prove that you were impaired to any degree, but they must prove it beyond a reasonable doubt. A breath test result that is under .08 is good evidence that you were not impaired but it isn't conclusive. The officer may still have probable cause to support the arrest based on his observations of your driving and sobriety tests results. That being said, anytime you have a BAC result that is under the legal threshold, you have a good case and one that you should defend.
    Answer Applies to: New Hampshire
    Replied: 3/13/2012
    Harris Law Firm
    Harris Law Firm | Jennifer C. Robins
    Yes, you can be charged with, and convicted of, a DUI for a breath test less than .08%. In Oregon, someone can be found guilty of a DUI if, at the time they were driving, they were "impaired to a noticeable and perceptible degree" by drugs or alcohol. I would highly recommend that you consult with an attorney in this situation.
    Answer Applies to: Oregon
    Replied: 3/13/2012
    The Short Law Group, P.C.
    The Short Law Group, P.C. | Shawn Kollie
    Under Oregon law and individual can be charged with DUI if they have a BAC over .08 at the time of driving, OR are 'intoxicated to a noticeable degree'. The officer in this scenario may have believed you were intoxicated to a noticeable degree and thus charged with DUI. An experienced DUI Lawyer may help you to fight this case at trial or help to determine what route may be best. Contact a local DUI Lawyer with the facts of your case.
    Answer Applies to: Oregon
    Replied: 3/13/2012
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    Yes you can. VC 23152(a) doesn't specify a particular BAC amount, just that you are "under the influence" aka "imparied." The FSTs are designed as evidence for a later conviction. Contact a DUI specialist for help.
    Answer Applies to: California
    Replied: 3/13/2012
    The Law Offices of Victor J Mazzaraco
    The Law Offices of Victor J Mazzaraco | Victor J Mazzaraco
    Yes it is. One DUI charge requires a blood alcohol level of .08% or higher, but the other other count simply requires driving while impaired due to alcohol or drugs or a combination of the two.
    Answer Applies to: California
    Replied: 3/13/2012
    The Law Offices of Harold L. Wallin | Harold L. Wallin
    Yes. An officer must arrest for DUI based on his opinion that you were drunk *before* giving you the breath test. If you are under 0.05, there is a legal presumption that you were not intoxicated. Between 0.05 and 0.08 there is no presumption.
    Answer Applies to: Illinois
    Replied: 3/13/2012
    The McDonnell Law Firm, PLLC
    The McDonnell Law Firm, PLLC | Patrick J. McDonnell
    There are two separate misdemeanor DWI statutes usually charged to a person arrested for DWI: 1) 1192(2) Driving with a BAC of >.08%; and 2) 1192(3) Driving while Intoxicated. The first is just a quantitative measured amount of alcohol in your bloodstream usually proven by a breathalyzer or blood test. The second is the common law charge of driving while intoxicated which you can be convicted of regardless of the amount of alcohol in your system if your ability to drive a motor vehicle is substantially impaired by the consumption of alcohol. (For example, a 16 year old kid drinking his first beer may be more "intoxicated" than a 50-year-old alcoholic with a .25% BAC in his system.
    Answer Applies to: New York
    Replied: 3/13/2012
    Law Office of Michael Morgan, l.L.C.
    Law Office of Michael Morgan, l.L.C. | Michael Morgan
    Yes.
    Answer Applies to: Washington
    Replied: 6/2/2013
    Brucar & Yetter, P.C.
    Brucar & Yetter, P.C. | Wayne Brucar
    You can be charged with DUI even if you blow below the legal limit based on the officers observations. Blowing below .08 certainly works in your favor if you are charged with driving under the influence of alcohol. If you are charged with driving under the influence of drugs, it's another story.
    Answer Applies to: Illinois
    Replied: 3/13/2012
    Gregory Casale Attorney at Law
    Gregory Casale Attorney at Law | Gregory Casale
    The .08% blood alcohol level is only 1 of 3 elements that the government must prove to convict someone of an OUI. The elements are 1) Operation - were you "operating" the vehicle; 2) Public Way - was the vehicle being "operated" on a way that is a public way or to which the public is invited and allowed to use; and 3) .08% blood alcohol or impaired ability to drive safely. Therefore, the 3rd element is the one that is most often in contention and if the government can rightfully introduce evidence of .08% blood alcohol or greater, they have then satisfied that one element of the charge. If there is no breath test or blood alcohol reading in evidence, they can then attempt to prove that 3rd element through other means, such as Field Sobriety Test results, observations about the Operator's appearance and demeanor (i.e. slurring speech, swaying or staggering, bloodshot eyes, odor of alcohol from the breath) as well as any driving that the Police Officer or another witness may have observed (i.e. marked lanes violations). So, the short answer to your question is, yes, they can charge you with OUI or DUI or DWI (they are all the same) without a breath test reading of .08% or greater. They will have to rely on opinion evidence of impaired ability for the 3rd element of the charge. If you have been charged with an OUI/DUI/DWI and have breath test reading of less than .08%, do not think this is a no brainer and try to go it alone. Many people have been convicted without any breath test reading as well as those between .05% and .08%. Speak with a lawyer who specializes in DWI/OUI/DUI cases.
    Answer Applies to: Massachusetts
    Replied: 3/13/2012
    Ellman and Ellman PC
    Ellman and Ellman PC | Kevin Ellmann
    You CAN get a DUI even if the result is less than .08, based upon your driving actions, performance on roadsides, or the officers other observations of your impairment or your admissions. Consult with an experienced DUI defense attorney.
    Answer Applies to: Colorado
    Replied: 3/13/2012
    Todd Landgren, Professional Law Corp.
    Todd Landgren, Professional Law Corp. | Todd Landgren
    Yes! Some people are impaired at levels below .08% If cop thought you were impaired, then you can be arrested and charged. Case is probably very defensible if you can afford good DUI lawyer.
    Answer Applies to: California
    Replied: 3/13/2012
    Gutin and Wolverton
    Gutin and Wolverton | Harley Gutin
    In Florida an individual has to be placed under arrest to be legally given a breath test. So the answer to your question is yes you can be arrested and then take a breath test which falls under the 08 mark. Sometimes people are high on drugs and blow a 000 and then the officer asks for a urine sample. However, in your case you appear to have a great defensible case. I would retain counsel and fight it.
    Answer Applies to: Florida
    Replied: 3/13/2012
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