Can I get a DWI if I was under the BAC limit? 12 Answers as of May 08, 2015

I was pulled over for running a stop sign and had a BAC of .7. The police still wrote me up for DWI because he said that my driving was obviously impaired. However this is going to be second offense in three years and I do not want the charges to escalate. Even though my BAC was under the legal limit, is the opinion of the officer really enough to charge me with a DWI?

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Richard B. Jacobson & Associates, LLC | Richard B. Jacobson
His opinion is enough to charge you with the offense. If the matter goes to trial, the prosecution must prove that your driving was impaired, and that your consumption of alcohol was the cause of the impaired driving. They are permitted to use the .07 BAC as evidence pointing to the likelihood that alcohol was the cause. Discuss your case with a skilled OWI (=DUI) lawyer, who can review all the facts in detail and give you more specific and helpful advice. Good Luck.
Answer Applies to: Wisconsin
Replied: 5/8/2015
Universal Law Group, Inc. | Francis John Cowhig
The police officer's opinion can be enough. The Vehicle Code (Section 23152) has 2 subsections dealing with Driving under the Influence that are most commonly used. Subsection (a) states: "It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle." Subsection (b) states: "It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle." So you can be charged under Vehicle Code Section 23152(a), even if your blood alcohol level is below .08. You should hire an attorney to defend you and possibly have the charges reduced.
Answer Applies to: California
Replied: 5/8/2015
Lawrence Lewis
Lawrence Lewis | Lawrence Lewis, PC
The opinion of the officer is enough. Your opinion that you do not have a drinking problem is enough to keep you drinking, right?
Answer Applies to: Georgia
Replied: 5/7/2015
S. Joseph Schramm | Joseph Schramm
There is a provision in the law that allows the police to make a charge of D.U.I. if they feel that the person was driving while impaired. This section is sometimes invoked when the driver refuses to take a breathalyzer or blood test or, as in this case, when one's BAC is below the legal limit. Conviction under these circumstances is not automatic and, where it rests on simply the testimony of one officer whose idea of obvious impairment, when subjected to cross-examination, is different from that of the court or a jury the case might be dismissed.
Answer Applies to: Pennsylvania
Replied: 5/7/2015
Law Office of Robert E McCall | Robert McCall
In Florida the officer only makes a charging recommendation, the actual charge comes from the States Attorney. If you were a .07 my jurisdiction would not proceed to a trial. They would bluff and dismiss the charge on the morning of the trial or offer a "sweetheart" plea deal.
Answer Applies to: Florida
Replied: 5/7/2015
    Anderson Law Office
    Anderson Law Office | Scott L. Anderson
    Being charged is not the issue, being convicted is the key.
    Answer Applies to: Minnesota
    Replied: 5/7/2015
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    It's not just the officer's opinion. It's what's in the police report, like the bad driving, the poor performance on the FSTs...etc. Keep in my that you can still be charged with VC 23152(a) and be convicted even when you are under the legal limit. My advice would be to get a DUI specialist, because if convicted you face mandatory jail.
    Answer Applies to: California
    Replied: 5/7/2015
    Best DUI Lawyer
    Best DUI Lawyer | Aniko Hoover
    In California we have DUI instead of DWI. You can get a DUI based on field sobriety test failure alone - in fact most arrests in California are for 23152(a) Failuing field sobriety test and 23152(b) chemical test failure - blood or breath test shows .08% or higher BAC. There is no way your BAC was .7 or you would be dead- but yes you can get arrested with .07 BAC. Some District Attorneys in some counties will not prosecute a .07 others will charge you with a DUI but settle for a Wet Reckless - some will go the distance and try to convict under 23152(a). There are many DUI's where the breath might be .07 but where there is also marijuana or drugs - even prescription drugs that make it a clear DUI. Good Luck! You need to Lawyer up!
    Answer Applies to: California
    Replied: 5/7/2015
    Cynthia Henley, Lawyer
    Cynthia Henley, Lawyer | Cynthia Henley
    If you got a DUI, it is because you are under 21 and had any alcohol in your system while driving. If you got a DWI, then the argument will be that by the time you took the test, you were going down in the level. (Extrapolation facts will be required.) And, there is a presumption that you are intoxicated at a .08 but there are "experts" who will testify that one is intoxicated at a much lesser level. The question is whether you were intoxicated. Hire an experienced lawyer who can request an ALR hearing - this must be done within 10?days of your arrest.
    Answer Applies to: Texas
    Replied: 5/7/2015
    Shalvoy Law, LLC | Walter A. Shalvoy Jr.
    Yes, but you can fight it. The prosecutor will most likely tell you they will try it under common law, which is bullshit. Find an experienced attorney and try the case. I'm assuming you took the AEP program for the first offense, if this is going to be your first conviction you are looking at 100 community service, etc. Contact an attorney who will provide a free consultation, like myself.
    Answer Applies to: Connecticut
    Replied: 5/7/2015
    The Law Offices of Harold L. Wallin | Harold L. Wallin
    Yes, you can be charged and convicted of a DUI even if your BAC is under 0.08. In Illinois, you can be found guilty of a DUI if you have consumed enough alcohol to impair your ability to safely operate a motor vehicle. You need to obtain representation to defend this case.
    Answer Applies to: Illinois
    Replied: 5/6/2015
    Law Office of Russell A. Warren
    Law Office of Russell A. Warren | Russell A. Warren
    Yes. You do not have to blow or have a BAC% amount to be charged with DWI/DUI. As long as the prosecutor can point to "inditia of Intoxication".....that is all they need to prove.
    Answer Applies to: Missouri
    Replied: 5/6/2015
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