Can I be arrested for a DUI? 72 Answers as of June 26, 2013

I was arrested and taken to jail when I was charged with a DUI. I had to have a family member bail me out. I had blown slightly under the legal limit and I was getting frustrated with the officer and he sent me to jail. What can I do?

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Austin Legal Services, PLC
Austin Legal Services, PLC | Jared Austin
Hire an experienced DUI attorney as soon as possible. At least have one review the reports to check for any errors or problems that could get the charges reduced or dismissed. Too much is at stake to do it alone and a good DUI attorney will more than pay for himself.
Answer Applies to: Michigan
Replied: 8/24/2011
Law Office of Andrew Subin
Law Office of Andrew Subin | Andrew Subin
An officer may arrest you and book you into jail for DUI. The state can allege DUI even if you blew under the legal limits. All you can do is fight the case beginning with your next court date.
Answer Applies to: Washington
Replied: 8/15/2011
Law Office of Sara Sencer McArdle
Law Office of Sara Sencer McArdle | Sara Sencer McArdle
I do not understand your question. When a person is charged with a DUI he is usually arrested or detained for several hours. Is this what your mean? You can call me for further information.
Answer Applies to: New Jersey
Replied: 8/15/2011
Edward  D. Dowling IV Attorney at Law
Edward D. Dowling IV Attorney at Law | Edward D. Dowling IV
This response is general information only and does not establish an attorney client relationship. However, you should hire an attorney to represent you.
Answer Applies to: New York
Replied: 8/11/2011
The Law Office of Eric R. Chandler, P.C., L.L.O.
The Law Office of Eric R. Chandler, P.C., L.L.O. | Eric R. Chandler
Yes, it is up to the arresting law enforcement agency on whether or not they book you into jail or release you with a citation. If you blew under the legal limit, then you can likely get out of the DUI. It is odd that you were booked into jail if your blood alcohol was under .08? Are you sure you were not booked on other charges such as Disorderly Conduct or Obstruction? Your best bet is to contact a lawyer in your city who handles DUI defense.
Answer Applies to: Nebraska
Replied: 8/9/2011
    Freeborn Law Offices, P.S.
    Freeborn Law Offices, P.S. | Steve Freeborn
    Perhaps. Many people believe that they can only be charged with a DUI if their breath test reads .08 or higher. This is only one prong of the statute. The statute actually reads ".08 or higher, OR the person's driving has been affected to an appreciable degree". Another contributing factor is how you performed on the field tests (if any). Also, being "frustrated with the officer" did not help your cause. You also did not state your age: If you are under 21 then the breath test level is much lower. Also, if you have a commercial driver's license, the breathe test is also much lower (.04). You best speak with an attorney and go over the facts of your case.
    Answer Applies to: Washington
    Replied: 8/8/2011
    Law Office of Thomas A. Medford, Jr., PC
    Law Office of Thomas A. Medford, Jr., PC | Thomas A. Medford, Jr.
    Whether you can be arrested for DUI depends on the amount of alcohol that you consumed and your driving performance and you should discuss these points fully with your attorney.
    Answer Applies to: District of Columbia
    Replied: 8/8/2011
    Brucar & Yetter, P.C.
    Brucar & Yetter, P.C. | Wayne Brucar
    Plead not guilty and bring the matter to trial. Even if you blew under the legal limit, the State can prosecute you under the arresting officer's observations and opinion about your state of intoxication before and after you were stopped. Please understand that answering this doesn't create an attorney/client relationship between us, and as hard as I try to answer your question well, it isn't legal advice. No matter how much information you put into a question, the answers you are going to get are still going to be vague. It is in your interest to contact a lawyer, most of whom will do a free consultation. Even 15 minutes with a lawyer is going to produce a more specific answer to your problem.
    Answer Applies to: Illinois
    Replied: 8/6/2011
    Gonzalez Law Associates P.C.
    Gonzalez Law Associates P.C. | Carlos Gonzalez
    Yes, you may technically be arrested for driving while ability impaired if you're above .05 percentum blood alcohol content... Although this is for most people nonsensical, as the legal limit in NY is .08, that they can be arrested and face license suspension for a lowered BAC it is the law and can technically lead to many issues.
    Answer Applies to: New York
    Replied: 8/6/2011
    The Law Office of Kevin O'Grady
    The Law Office of Kevin O'Grady | Kevin O'Grady
    You can hire an attorney to fight for you. Do not give up. Hope is not a plan of action. Hire an attorney now so that he can do his best to defend you.
    Answer Applies to: Hawaii
    Replied: 8/6/2011
    Jules N. Fiani, Attorney at Law
    Jules N. Fiani, Attorney at Law | Jules Fiani
    Yes.
    Answer Applies to: Michigan
    Replied: 8/6/2011
    Law Office of Thomas F. Mueller
    Law Office of Thomas F. Mueller | Thomas Mueller
    You can fight the case. The officers actions can be used to show prejudice and lack of professional conduct
    Answer Applies to: California
    Replied: 8/6/2011
    Law Office of Richard Williams
    Law Office of Richard Williams | Richard Williams
    August 5, 2011 The burden of proof for a DUI is, on many occasions, the officer's opinion as to whether you were under the influence to the extent it impaired your ability to safely operate a motor vehicle. The test that is administered, always after an arrest, may be used in court, if properly conducted. A person can be convicted of DUI if the officer opines they are under the influence even with a reading below the legal limit.
    Answer Applies to: Alabama
    Replied: 8/6/2011
    The Law Office of Harry E. Hudson, Jr.
    The Law Office of Harry E. Hudson, Jr. | Harry E. Hudson, Jr.
    Driving under the influence can be done even if your BAC is less than .08. There are two code sections. One is for having a BAC of .08 or more. The other is just for being under the influence. What can you do? Hire an attorney
    Answer Applies to: California
    Replied: 8/5/2011
    Craig W. Elhart, P.C.
    Craig W. Elhart, P.C. | Craig Elhart
    If you were charged, you should hire a competent criminal defense attorney and fight the charge.
    Answer Applies to: Michigan
    Replied: 8/5/2011
    Lewis & Dickstein, P.L.L.C.
    Lewis & Dickstein, P.L.L.C. | Loren Dickstein
    In Michigan, the legal limit is .08. However, there is another offense called OWVI or Operating While Visibly Impaired. There is no minimum blood or breath alcohol limit for that offense. The question is whether your driving was impaired by alcohol, drugs or a combination fo the two such that your ability to operate was visibly impaired. This may be the theory the police officer is going by. Cases where the blood or breath alcohol level are under .08 are often very defensible. A highly experienced DUI attorney can help you with your case. I suggest you retain a criminal defense lawyer ASAP.
    Answer Applies to: Michigan
    Replied: 8/5/2011
    Bloom Legal, LLC
    Bloom Legal, LLC | Seth J. Bloom
    If there is evidence indicating that you were under the legal limit for intoxication then you should have a strong chance of having your charges dismissed or at least avoid conviction. You should be sure to confirm that what you were actually charged with when booked was DWI as the officer may have decided to arrest you for resisting arrest, reckless operation, public intoxication or a number of other possible crimes. If you are seeking legal representation in this matter in Louisiana, I invite you to contact our firm at the information on this page for a free case evaluation.
    Answer Applies to: Louisiana
    Replied: 8/5/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    If you blew under the legal limit, you may have some very good defenses. A first offense, fourth degree DWI, is still serious and carries with it maximum criminal penalties of up to 90 days in jail and a $1000 fine. If convicted any subsequent DWI offense would be much more serious and with four offenses in ten years, you can be charged with a felony. As a result, as strong defense on the first alleged incident can be critical to your future. Different Judges give different sentences. Accordingly, understanding your Judge and knowing how to change Judge's can be an important part of the process. There is also a civil case that results in the revocation of your driver's license. On a first offense over your lifetime, you may be revoked for 30 to 90 days. This is a separate case even though the challenges are largely the same. In order to challenge your license revocation, you must seek a judicial review by filing a petition within 30 days of the offense. Do not forget this critical time period. All too often people with strong defenses come to me too late to challenge the license revocation. The end result goes well beyond simply having your license revoked. A failure to challenge results in an Implied Consent violation on your record which can also affect employment and may be used to enhance any subsequent DWI offense. There are many challenges to a DWI. Officers must follow very specific steps as part of the arrest. If any one step is missing, the case may be dismissed.
    Answer Applies to: Minnesota
    Replied: 8/5/2011
    The Law Offices of Leifert and Leifert
    The Law Offices of Leifert and Leifert | Brian Leifert
    Hire an experienced DUI defense lawyer!!! Just because you were arrested doesn't automatically mean you will be charged with a crime and prosecuted. There are other factors to consider aside from the breath test, but the goal would be to convince the State Attorney's Office to "no info" (not prosecute) the case.
    Answer Applies to: Florida
    Replied: 8/5/2011
    Donahue, Sowa & Magana Attorneys at Law
    Donahue, Sowa & Magana Attorneys at Law | Glenn M. Sowa
    In Illinois, there are statutory presumptions regarding the blood alcohol content for DUI. Any result above 0.08 is presumed to be proof intoxication. A result of 0.05 to 0.079, has no presumption of intoxication. The evidence may go either way, depending on other factors. Without field sobriety evidence or no other extrinsic proof of impairment, you may be found not guilty of DUI. Any result of less that 0.05 BAC presumes that you are not intoxicated.
    Answer Applies to: Illinois
    Replied: 8/5/2011
    Law Office of Rankin Johnson IV, LLC
    Law Office of Rankin Johnson IV, LLC | Rankin Johnson IV
    Wait to see what happens. You might be charged; DUII can be committed either with a blood-alcohol level of .08% or higher, or by being observably impaired. There is nothing for yo to do now, though. The prosecutor might decide not to charge you, and nothing will ever happen. If you're formally charged with DUII, hire a lawyer or ask the court to appoint one, and go from there. If it's your first offense, diversion permits you do to do court-supervised treatment and avoid a conviction, and that's often the right choice even if you have a decent case for trial.
    Answer Applies to: Oregon
    Replied: 8/5/2011
    Healan Law Offices
    Healan Law Offices | William D. Healan, III
    You can be arrested, although you generally have a good defense if you were under the limit.
    Answer Applies to: Georgia
    Replied: 8/5/2011
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    We recommend that you retain a criminal lawyer concerning your rights and options, including contesting the DUI charge. Good luck.
    Answer Applies to: Georgia
    Replied: 8/5/2011
    Boske Law Offices
    Boske Law Offices | Michael A Boske
    Yes, the officer has the option of giving you a citation or arresting you.
    Answer Applies to: Ohio
    Replied: 8/5/2011
    Michael Breczinski
    Michael Breczinski | Michael Breczinski
    Yes you can be arrested there is no legal lower limit for the crime of "Impaired" driving. Just some alcohol and proof that it impaired your ability to drive. You need an attorney.
    Answer Applies to: Michigan
    Replied: 8/5/2011
    Law Offices of Sean Logue
    Law Offices of Sean Logue | Sean Logue
    You may be charged for any number of non-DUI crimes. (Wreckless driving, disorderly conduct, etc.) The cop can still charge you for a general impairment crime. You should hire an attorney.
    Answer Applies to: Pennsylvania
    Replied: 8/5/2011
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    Yes you can and you did. Contact a DUI specialist soon, because you have only 10 days to save your license.
    Answer Applies to: California
    Replied: 8/5/2011
    Klisz Law Office, PLLC
    Klisz Law Office, PLLC | Timothy J. Klisz
    You were arrested for DUI, so the answer to your question is yes. You certainly have a defense to the bac reading, but you can still be charged and convicted of DUI based on the actual driving, if impaired or intoxicated.
    Answer Applies to: Michigan
    Replied: 8/5/2011
    Law Offices of John Carney
    Law Offices of John Carney | John Carney
    You should retain an experienced criminal lawyer or have one appointed if you are indigent. You can be arrested with anything over a .03, even though the legal limit is .08. The time of the test is after the time you were driving. You will likely end up pleading to an impaired with a 90 day suspension and a $500 fine, plus driving school.
    Answer Applies to: New York
    Replied: 8/5/2011
    Law Office of Maureen Furlong Baldwin
    Law Office of Maureen Furlong Baldwin | Maureen Furlong Baldwin
    You have been given a court date and a letter from the DMV regarding revocation of your license. You must request the DMV hearing within 10 day of your arrest. In terms of the court case, when you were released you were given a court date. That is your arraignment. You can hire an attorney, ask for a public defender or handle the case on your own. But you should plead not guilty at the arraignment and ask for "discovery". That means police reports, reports of tests, etc. That should be reviewed by an attorney. Unless the DA dismisses your case, it is too complex for you to handle. You also need to be aware that if you do not request a DMV hearing, your drivers' license may be suspended, even if the DA dismisses. You really need a lawyer.
    Answer Applies to: California
    Replied: 8/5/2011
    Michael R. Nack, Attorney at Law
    Michael R. Nack, Attorney at Law | Michael R. Nack
    You need to hire an attorney to represent you and defend that charge. If you do not already have an attorney, I might be able to help you myself.
    Answer Applies to: Missouri
    Replied: 8/5/2011
    Law Office of Neal L. Weinstein
    Law Office of Neal L. Weinstein | Neal L. Weinstein
    You can be charged with operating while under the influence even if you test below the .08. Usually he will arrest you first, and then send you to the jail to take the test, so your recitation of the facts doesn't sound quite accurate. Most cops do not have an intoxilizer machine with them. But, if you were below the limit and he knew it and arrested you anyway, you can report him to his supervisor and make a complaint. You could possibly sue for illegal arrest but no lawyer would want your case as there are no real damages. Make sure the case is fully dismissed before you make your complaint.
    Answer Applies to: Maine
    Replied: 8/5/2011
    Wallin & Klarich: A Law Corporation
    Wallin & Klarich: A Law Corporation | Paul Wallin
    You should immediately meet with an experienced DUI attorney in your area who can help you. If you blew below a .08 then the DA can only file a cvc 23152a against you and not the "b" count. You have a lot at stake.
    Answer Applies to: California
    Replied: 8/5/2011
    Law Office of Jared Altman
    Law Office of Jared Altman | Jared Altman
    You need a lawyer to vigorously defend you. You can still be charged and convicted without a reading above the legal limit.
    Answer Applies to: New York
    Replied: 8/5/2011
    Gregory Casale Attorney at Law
    Gregory Casale Attorney at Law | Gregory Casale
    You do not have to blow over the legal limit to be charged with a DUI. the elements for a DUI in MA are: 1) Operation - meaning that it was you who "operated" the vehicle. This is a legal term and can apply o a person who is merely sitting in a vehicle with the ignition turned off, but while the key is in the ignition; and 2) Public Way - meaning that you "operated" the vehicle while on a " public way" as opposed to a private driveway or even in some cases a parking lot or a shared driveway; and 3) While Intoxicated - this is the one that is usually contested. The state can proceed under two different theories here. The first is that your blood alcohol level is .08% or greater; or that your ability to operate is impaired by the consumption of alcohol or drugs. It is #3 that is your issue from your description. Although you say you blew something under .08, the state can still prosecute under the impaired ability leg of the intoxication element. They can try to prove this through circumstantial evidence such as Field Sobriety Test (FST) or by testimony of the police officer or even a civilian witness who can testify that you were driving erratically or acting intoxicated. You will need need to hire an attorney to defend you on this charge. The DA prosecutes DUIs under both of these theories regularly. It is not as common as the .08% standard because it is so much easier for the DA to win under the .08% theory. But the impaired ability standard has been around long before .08% became determinative of Intoxication, which occurred when Melanie's Law went into effect. Do not take this lightly because you blew below the limit. DA's have been prosecuting on Impaired Operation since drinking and driving went from being an acceptable social norm to a highly visible, harshly enforced crime. If you would like to discuss your case in more detail you can reach me at the numbers listed below.
    Answer Applies to: Massachusetts
    Replied: 8/5/2011
    Michael Maltby, Attorney at Law
    Michael Maltby, Attorney at Law | Michael Maltby
    It is often a discretionary call on the part of the officer whether to book you into jail or not for DUI. It is sometimes mandatory that an officer book you if you have prior offenses that require a mandatory arrest per the policy of the police department. It sounds like you may have rubbed the officer the wrong way and he got even. Good luck.
    Answer Applies to: Washington
    Replied: 8/5/2011
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    Can you be arrested? You were. What can you do? You can fight the charges. When arrested or charged with any crime, the proper questions are, can any evidence obtained in a test, search or confession be used against you, and can you be convicted, and what can you do? Raise all possible defenses with whatever admissible and credible witnesses, evidence, facts and sympathies are available for legal arguments, for evidence suppression or other motions, or at trial. If you don't know how to do these things effectively, then hire an attorney that does, who will try to get a dismissal, diversion, reduction or other decent outcome through plea bargain, or take it to trial if appropriate. If serious about hiring counsel to help in this, and if this is in SoCal courts, feel free to contact me. Ill be happy to help use whatever defenses there may be. Keep in mind a little free advice: 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 one-year 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. If you don't know how to do these things, then hire an attorney that does.
    Answer Applies to: California
    Replied: 8/5/2011
    The English Law Firm
    The English Law Firm | Robert English
    You can be arrested for a DUI even if you blow under the legal limit. If the officer determines that your driving was impaired by the use of alcohol, you can still be arrested and convicted under VC 23152(a) even if you are not above .08% BAC. I would recommend hiring an attorney.
    Answer Applies to: California
    Replied: 8/5/2011
    Kevin Smith, Attorney at Law
    Kevin Smith, Attorney at Law | Kevin Smith
    You must contact an experienced criminal defense attorney who has tried DUI cases before, as you have a very good defense. The State can proceed on the common law theory, meaning that they don't have to have Breathalyzer results, but the circumstances of your case suggest that the real motive for the cop's actions was that you upset him or her, and that is not right.
    Answer Applies to: Connecticut
    Replied: 8/5/2011
    Eric J Schurman, Attorney at Law
    Eric J Schurman, Attorney at Law | Eric James Schurman
    You certainly want to retain an attorney to represent you and get the best possible results.
    Answer Applies to: Washington
    Replied: 8/5/2011
    The Law Office of James McKain
    The Law Office of James McKain | James McKain
    There are 2 ways to be convicted of DUI: (1) have a blood alcohol content of .08 or above OR (2) have your driving effected to any appreciable degree by any drug or alcohol. It is possible to be convicted of DUI even though you blew under the legal limit. You should contact an experienced DUI attorney so you can discuss the particulars of your case with confidence and confidentiality.
    Answer Applies to: Washington
    Replied: 8/5/2011
    Collins Law Firm, P.A.
    Collins Law Firm, P.A. | John C. Collins
    Hire a reputable dwi attorney. The .08 limit is a per se violation, but you can be charged if you blow under the limit. The state will either try to convict you using a definition of intoxication approach or by using retrograde extrapolation. If you talk to an attorney that can't explain what these two things are, keep calling until you find someone who can. These cases a very winnable but must be handled by someone who understands the science and law involved.
    Answer Applies to: Arkansas
    Replied: 8/5/2011
    Gutin and Wolverton
    Gutin and Wolverton | Harley Gutin
    The law allows two ways in Florida to prove DUI. 1. That you were driving or in actual physical control of a vehicle while having a Blood Alcohol content above .08. Additionally the State can prove DUI by demonstrating that you were under the influence of a substance (drugs or alcohol) and then; 2. By demonstrating that you were under the influence of either to the extent your normal faculties were impaired (could not talk or walk what the prosecution would deem normal). So yes they can arrest you under the facts you have given if they believe you were under the influence. However, because you were below the legal limit they (the prosecution) would not have the presumption that the law allows (that the Jury would be instructed that you were over the legal limit). What can you do? Retain a very good DUI trial defense attorney and take it to trial.
    Answer Applies to: Florida
    Replied: 8/5/2011
    Law Offices of Jeffery A. Cojocar, PC
    Law Offices of Jeffery A. Cojocar, PC | Jeffery A. Cojocar
    Most definitely, fight and litigate the case.
    Answer Applies to: Michigan
    Replied: 8/5/2011
    Law Offices of Martina A. Vigil, PC
    Law Offices of Martina A. Vigil, PC | Martina A. Vigil
    Yes you can and will be arrested for a DUI charge. Your first step is to hire an attorney to evaluate your case. Since you blew just under the legal limit it is ESPECIALLY important for you to fight this charge. DUIs are very expensive and come with heavy consequences.
    Answer Applies to: California
    Replied: 8/5/2011
    Connell-Savela
    Connell-Savela | Jason Savela
    the legal limit is .05 BAC if you were under .05, they can still arrest you because the statutes says that creates a presumption that you are able to drive, but that presumption can be overcome by other evidence in truth, cases under .05 rarely go to trial and a good attorney will win it nearly every time now, if the "blow" was portable breath test (hand held at roadside) and the test at the station was blood test, then you do not actually have your results yet cops have lots of discretion as to who to arrest and jail versus who gets a summons, meaning that you sign and promise to appear. being nice to the cop, polite, but still asserting your rights, often will allow you to summons on non-felony cases, but then again, some cops are really mean get your police reports and lets discuss - or just sent me an email directly
    Answer Applies to: Colorado
    Replied: 8/5/2011
    Harris Law Firm
    Harris Law Firm | Jennifer C. Robins
    Yes, a charge of DUI is an arrestable offense in Oregon, even if the breath test provides a result that is below the legal limit of .08%. In Oregon, a prosecuting attorney can prosecute someone if their blood alcohol concentration is a .08 or above OR if the person is impaired to a perceptible degree. In other words, it is possible to be found guilty of a DUI if your BAC was below .08. These types of cases are very complex, so I highly recommend consulting with an attorney on this matter.
    Answer Applies to: Oregon
    Replied: 8/5/2011
    Lacy Fields, Attorney at Law, LLC
    Lacy Fields, Attorney at Law, LLC | Lacy Fields
    Having a BAC of .08 gives rise to the presumption of intoxication. Therefore, if you are a little under, you are presumably not intoxicated. However, the test for a conviction is actual intoxication. If you failed your field sobriety tests, were slurring your words, smelled of alcohol, etc then there may be enough other evidence of intoxication to support criminal charges.
    Answer Applies to: Missouri
    Replied: 8/5/2011
    Night Life Lawyers
    Night Life Lawyers | Joshua Aldabbagh
    In Nevada, if the officer believes a driver was impaired while driving, he can arrest the driver, even if the driver's BAC (blood alcohol content) was below the legal limit of .08. In terms of being convicted, a prosecutor can proceed with a DUI case even if the BAC was below .08 under an "impairment theory", i.e. that one's driving ability has been impaired by intoxication to the point that it was unsafe for the driver to be operating a vehicle. This case is typically harder for the prosecution to win then. You should retain an attorney to defend you.
    Answer Applies to: Nevada
    Replied: 8/5/2011
    Russman Law
    Russman Law | Ryan Russman
    The police can arrest you even if you blow under a .08. I would seek legal counsel to contest the DWI. I offer a free consultation.
    Answer Applies to: New Hampshire
    Replied: 8/5/2011
    Potter Law Offices
    Potter Law Offices | Cal J. Potter, III, Esq.
    The probable cause for an arrest for DUI is generally the field sobriety tests and a preliminary breath test. You can still be charges even if the reading is slightly below the legal limit, but your chances of having the case dismissed is improved.
    Answer Applies to: Nevada
    Replied: 8/5/2011
    Grantland, Blodgett, Shaw & Abel
    Grantland, Blodgett, Shaw & Abel | Gregory M. Abel
    YOU SHOULD HIRE A GOOD DUI LAWYER! The Oregon DUI statute has three prongs that allow a driver to be charged with DUI even when the breath test is below the per se level of .08 by weight.
    Answer Applies to: Oregon
    Replied: 8/5/2011
    Palumbo and Kosofsky
    Palumbo and Kosofsky | Michael Palumbo
    You can retain our office as counsel to defend you against the charges.
    Answer Applies to: New York
    Replied: 8/5/2011
    Cynthia Henley, Lawyer
    Cynthia Henley, Lawyer | Cynthia Henley
    Yes you can be arrested. If you were arrested for DUI (driving under the influence) then that means that you are under 21 and Texas has a no tolerance law regarding minors driving with ANY alcohol in their system. If you mean you were arrested for DWI, you can still be prosecuted but it will be a more difficult case (and your lawyer might be able to talk the prosecutor into dismissing.) The breath test result was for the amount of alcohol in your system at the time of the test. The question is what you level was at the time of driving. If they have sufficient extrapolation facts (when & what you drank and ate - provided by you during the interview generally), then they might be able to extrapolate back to a higher (above the limit) level at the time of driving.
    Answer Applies to: Texas
    Replied: 8/5/2011
    Leyba Defense, PLLC
    Leyba Defense, PLLC | Matthew Leyba
    Unfortunately you can be charged with a DUI even if your breath test was below a .08. I would suggest you contact an experienced DUI Attorney immediately to discuss your options and what you might expect.
    Answer Applies to: Washington
    Replied: 8/5/2011
    Andersen Law PLLC
    Andersen Law PLLC | Craig Andersen
    If there is probable cause based on the evidence that you were over a .08 breath-alcohol level or under the influence of or affected by an intoxicating liquor or substance the prosecutor can charge you with DUI. When you say you blew slightly under the legal limit, I assume that was on the roadside breath test. That is not evidence. The only breath-test result that counts is the one obtained at the jail or police department. If you blew under a .08 there, you may be charged with Negligent Driving in the First Degree. That charge does not result in your license being suspended and is less serious. Before you make any decisions on what to do, consult an attorney. The attorney can examine the facts of your case and recommend a course of action.
    Answer Applies to: Washington
    Replied: 8/5/2011
    The Law Firm of David Jolly
    The Law Firm of David Jolly | David Jolly
    You can be arrested for DUI even though your BAC (blood alcohol level) is below the legal limit (0.08). The State/City can prove the elements of a DUI by either a BAC test that is over the legal limit or a BAC test and evidence (ie. field sobriety tests) that proves the driver was impaired or affected by alcohol. Another way the State/City can prove a driver is a DUI driver is a combination of alcohol (ie. low BAC) and drugs (often a blood draw or DRE examination). For information on your Washington State DUI or your Snohomish County DUI, King County DUI, Skagit County DUI, Island County DUI or Whatcom County DUI
    Answer Applies to: Washington
    Replied: 8/5/2011
    Frances R. Johnson
    Frances R. Johnson | Frances R. Johnson
    Obviously you were charged with DUI, so I suspect your question is can you be convicted of a DUI. You should get an attorney who is experienced with handling DUI's (preferably taking DUI's to trial), who can best advise you upon knowing the specific facts of your situation. A DWAI (driving while ability impaired) is still a possibility even if you were "just under" the legal limit.
    Answer Applies to: Colorado
    Replied: 8/5/2011
    Law Office of Joe Dane
    Law Office of Joe Dane | Joe Dane
    There are two different DUI charges - 23152(a) and 23152(b) of the Vehicle Code. The 23152(a) charges makes it illegal to drive under the influence of alcohol and/or drugs. The second - 23152(b) makes it illegal to drive with 0.08% or above. Yes, you can technically still face a DUI, even if you're below the 0.08% legal limit. But - they must prove beyond a reasonable doubt that your driving was impaired by alcohol. Your first step should be to contact a local criminal defense attorney about representation - both in court and with the DMV. If the officer took your license away from you on the day of your arrest and issued you a temporary license (a pink piece of paper they may have included in your property when you were booked), you only have 10 days to request a hearing with the DMV or they'll automatically suspend your license. That suspension is totally avoidable if you were under 0.08%, but I wouldn't rely on the DMV to catch it and reverse their suspension automatically - the system is just too congested. Your lawyer can make sure you're good with the DMV as well as fighting for you in court on any criminal DUI charges.
    Answer Applies to: California
    Replied: 8/5/2011
    Law Office of Eric Sterkenburg
    Law Office of Eric Sterkenburg | Eric Sterkenburg
    You can be arrested for a DUI even if you blew below the legal limit. There are two code sections covering a DUI. One is for a blood alcohol of over 0.08. The other is for driving under the influence. The second one can be based on your appearance to the arresting officer. That section is generally harder for the DA to prove
    Answer Applies to: California
    Replied: 8/5/2011
    The Law Offices of Robert L. Driessen
    The Law Offices of Robert L. Driessen | Robert L. Driessen
    Clearly you can be arrested for the DUI as to put it quite frankly you were arrested for the DUI. (Sorry for the sarcasm) The real question is can you be convicted of a DUI. Well in California there are two potential charges for a DUI one is 23152(a) driving while under the influence of alcohol or drugs and the other is 23152(b) driving with a BAC of .08 or higher. Many times people are charged and convicted even when their BAC was below .08. This can be done by the prosecutor just seeking the (a) count or through a showing of back extrapolation where the prosecutor will show that at the time of driving your BAC was above .08 even if it was under that amount at the time of the test. What you need to do is contact the DMV within 10 days of the date of the arrest and schedule a DMV hearing. The other thing that you need to do is hire an attorney to represent you in the DMV action and the criminal case. This is not something that will go away on its own.
    Answer Applies to: California
    Replied: 8/5/2011
    Law Office of Michael Bialys THE DUI MAN
    Law Office of Michael Bialys THE DUI MAN | Michael Bialys
    If you blew under .08 you should fight it.
    Answer Applies to: California
    Replied: 2/22/2012
    Law Offices of James A Bates
    Law Offices of James A Bates | James A Bates
    Lots of unanswered questions here. Did you get a court date? The DA is the one who decides whether to charge you with a crime, not the cops. If you were given a ticket with a court date on it, be there. Hopefully the DA will decide not to file charges. If charges are filed, fight them. You were under the limit. Go for it!!!
    Answer Applies to: California
    Replied: 8/5/2011
    Smith & John
    Smith & John | Kenneth Craig Smith, Jr.
    You should hire a lawyer. The video of your arrest is now the key piece of evidence concerning allegations of impairment.
    Answer Applies to: Louisiana
    Replied: 8/5/2011
    Law Office of Michael Morgan, l.L.C.
    Law Office of Michael Morgan, l.L.C. | Michael Morgan
    You can still be charged with DUI even if your BAC reading is below .08. I suggest you either hire a lawyer or screen for a public defender asap. Mike
    Answer Applies to: Washington
    Replied: 8/5/2011
    John Segelbaum, P.S.
    John Segelbaum, P.S. | John Segelbaum
    You need an attorney to help you fight this charge. Even if the breath test is under .08, you can still be prosecuted for DUI under the "impairment" definition of the crime.
    Answer Applies to: Washington
    Replied: 8/5/2011
    Rothstein Law PLLC
    Rothstein Law PLLC | Eric Rothstein
    It sounds like you were arrested for Driving While Impaired. It's not a crime but it is serious because it can stay on your record and result in a license suspension. I suggest you retain counsel.
    Answer Applies to: New York
    Replied: 8/5/2011
    Law Office of Brendan M. Kelly
    Law Office of Brendan M. Kelly | Brendan M. Kelly
    You will need to hire a lawyer since the ticket has already been issued. Generally I have been able to get the matter dropped or reduced.
    Answer Applies to: Nebraska
    Replied: 8/5/2011
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