Can I still be convicted is breathalyzer result is below .08? 95 Answers as of June 14, 2013

Can I still be convicted is breathalyzer result is below .08? Is this still a punishable offense?

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Cornish, Crowley, Rockafellow, & Sartz, PLLC
Cornish, Crowley, Rockafellow, & Sartz, PLLC | Jacob Peter Sartz IV
Generally speaking, in Michigan, yes, a person may be charged with Operating While Impaired, which has no minimal blood alcohol level if the prosecutor can prove beyond a reasonable doubt that the alcohol level impaired their ability to drive. Further, the breathalyzer test may be lower than the result after a data-master or blood draw because the person had more recently consumed alcohol or due to the unreliability of the breathalyser. If you need specific legal advice for your particular circumstances, I encourage you to privately consult with a lawyer. If you are charged with an offense and cannot afford to pay for your own defense, the court may appoint you an attorney payable at the public's expense. You have a right to counsel.
Answer Applies to: Michigan
Replied: 7/20/2012
Edward  D. Dowling IV Attorney at Law
Edward D. Dowling IV Attorney at Law | Edward D. Dowling IV
You could still be convicted based on other evidence of impairment or intoxication. Breatalyzer is only one method of prooving impairment or intoxication.
Answer Applies to: New York
Replied: 6/21/2012
Michael Breczinski
Michael Breczinski | Michael Breczinski
Yes in Michigan impaired Driving has no lower limit it is just that you had alcohol in your system and it impaired your ability to drive. It is a lesser included offense of driving under the influence. It carries less punishment.
Answer Applies to: Michigan
Replied: 6/15/2012
Law Office of Richard Williams
Law Office of Richard Williams | Richard Williams
A conviction for DUI can be based on that you were driving with greater than .08 BAC, but it can also be based on the officer's opinion that you were too intoxicated to safely operate a motor vehicle regardless of the BAC level.
Answer Applies to: Alabama
Replied: 6/13/2012
Seth B. Cobin, Attorney at Law | Seth Benjamin Cobin
Yes, if you are under 21 you can be arrested for any positive breathalyzer results.
Answer Applies to: Minnesota
Replied: 6/13/2012
    Law office of Robert D. Scott | Robert Scott
    In some jrisdictions, if your BAC is below .08, there is a presumption that you were not Intoxicated. However, it may be sufficient for under the influence if your ability to operate the motor vehicle was impaired.
    Answer Applies to: Maryland
    Replied: 6/13/2012
    Craig W. Elhart, P.C.
    Craig W. Elhart, P.C. | Craig Elhart
    You may have a circumstance where, if charged with a DUI when the breathalyzer receipt printed less than .08, you'd be able to talk the charges down. You should seek the advice of an attorney right away.
    Answer Applies to: Michigan
    Replied: 6/12/2012
    Dennis Roberts, a P.C.
    Dennis Roberts, a P.C. | Dennis Roberts
    Yes, they don't need to use the breathalyzer. They can claim you were drunk by observations and your reaction on the field sobriety tests. Often if the BA is too low they will claim you were also smoking pot or had ingested some other drug.
    Answer Applies to: California
    Replied: 6/12/2012
    The Short Law Group, P.C.
    The Short Law Group, P.C. | Shawn Kollie
    Under Oregon Law, and individual can be arrested and charged with Driving Under the Influence when they are 'intoxicated to a noticeable degree' or have a BAC over .08. Simply because someone blows below the .08 does not necessarily mean they are not 'intoxicated to a noticeable degree'. A DUI is a Class A Misdemeanor with a maximum of 1 year in custody and a $6,250 fine. A DUI also has mandatory minimums in fines and fees. Contact a DUI Lawyer about the facts of your case.
    Answer Applies to: Oregon
    Replied: 6/12/2012
    Clinton Law Office | Michael Clinton
    Yes. If the prosecutor can demonstrate that your driving was impaired, you can be convicted of a DUI.
    Answer Applies to: Washington
    Replied: 6/11/2012
    Anderson Law Office
    Anderson Law Office | Scott L. Anderson
    Yes, you can be convicted if the state proves you were under the influence of alcohol. Seek representation to assist you since you may have defenses.
    Answer Applies to: Minnesota
    Replied: 6/8/2012
    The Law Office of Harry E. Hudson, Jr.
    The Law Office of Harry E. Hudson, Jr. | Harry E. Hudson, Jr.
    There are two charges. The .08 is a threshold at or above which , whether or not you are under the influence , you mmay not drive a vehicle, period. The other charge is for just being under the influence, regardless of the limit.
    Answer Applies to: California
    Replied: 6/8/2012
    Larry K. Dunn & Associates | Larry K. Dunn
    It is possible to be convicted of being under the influence of alcohol regardless as to whether the blood alcohol level is below .08. It is rare that a prosecutor would not be amenable to reducing the charge if the blood alcohol is below .08.
    Answer Applies to: Nevada
    Replied: 6/7/2012
    Law Office of Ronald G. Draper | Ronald G. Draper
    Theoretically yes you could be convicted.
    Answer Applies to: Illinois
    Replied: 6/7/2012
    Law Offices of Eric J. Bell | Eric J. Bell
    You can still be charged with DUI when you blow under the legal limit of .08. (They allege that you can't handle your liquor). I have tried several of these cases and have gotten very favorable results for my clients.
    Answer Applies to: Illinois
    Replied: 6/7/2012
    Charles M. Schiff, Attorney at Law
    Charles M. Schiff, Attorney at Law | Charles M. Schiff
    It is possible but the state would need to prove that you were "under the influence". If they have a test of 0.08% or greater, they do not need to prove that you were adversely affected by the alcohol, only that your test result was at or over the 0.08 figure.
    Answer Applies to: Minnesota
    Replied: 6/7/2012
    Law Office of Richard Southard
    Law Office of Richard Southard | Richard C Southard
    If it is under .05 then that is prima facie evidence that you were not intoxicated. Between .05 and .08 you certainly can be convicted of Driving while Ability Impaired a traffic infraction and not a crime but there are still stiff penalties. Depending on the timing and your actual BAC it may be possible to be convicted of the intoxicated as well but this is a defensible case. Hire a good DWI lawyer.
    Answer Applies to: New York
    Replied: 6/7/2012
    Russman Law
    Russman Law | Ryan Russman
    The State of New Hampshire has the authority to charge from a .03 and higher. If you are under the age of 21 the limit is .02. The .08 threshold is considered per se evidence of impairment.
    Answer Applies to: New Hampshire
    Replied: 6/7/2012
    R. Jason de Groot, P.A
    R. Jason de Groot, P.A | R. Jason de Groot
    You could still be convicted of DUI, but the state would probably be willing to offer a plea bargain to a wet reckless, unless there is evidence of perhaps other substances having impaired your ability to drive. Consult an attorney.
    Answer Applies to: Florida
    Replied: 6/7/2012
    Law Offices of John Carney
    Law Offices of John Carney | John Carney
    You can be convicted of DWAI with any BAC over .02. The legal limit is .08 where you are presumed to be intoxicated. If you blow over .13 you will probably have to go to trial. If you blow over .18 you risk getting a DWI conviction.
    Answer Applies to: New York
    Replied: 6/7/2012
    Vargas Law Office LLC | Ronnie Ismael Vargas
    It depends if you have prior offenses or not. If you have 3 or more convictions, anything above a .02 is a punishable offense.
    Answer Applies to: Wisconsin
    Replied: 6/7/2012
    The Law Office of Kevin O'Grady
    The Law Office of Kevin O'Grady | Kevin O'Grady
    You can be charged, and convicted, of DUI by reason of impairment regardless of your breath alcohol concentration. However, the lower the number is the more difficult it will be for the government to prove their case.
    Answer Applies to: Hawaii
    Replied: 6/7/2012
    Reza Athari & Associates, PLLC | Seth L. Reszko
    You can still be arrested if your BAC is below .08. If the police can establish that your driving was impaired, you can be arrested, charged and convicted of a DUI or reckless driving.
    Answer Applies to: Nevada
    Replied: 6/7/2012
    Leonard A. Kaanta, P.C. | Leonard A. Kaanta
    The statute for Operating while intoxicated states that the blood alocohol content has to be 0.08 grams, but you could be guilty of driving while being visibly impaired.
    Answer Applies to: Michigan
    Replied: 6/7/2012
    Mark Thiessen, Attorney at Law
    Mark Thiessen, Attorney at Law | Mark Thiessen
    You can if you are under 21 and charged with a DUI, or if they can retrograde extrapolate the 0.07 to above a 0.08 at the time of driving. You need an experienced DWI attorney who knows the science of retrograde extrapolation, like myself.
    Answer Applies to: Texas
    Replied: 6/7/2012
    Law Office of Phillip Weiser
    Law Office of Phillip Weiser | Phillip L. Weiser
    Yes, you could still be prosecuted and found guilty, if there is sufficient evidence of impairment presented. The .08 level is only a "per se" level for impairment.
    Answer Applies to: Kansas
    Replied: 6/7/2012
    James M. Osak, P.C.
    James M. Osak, P.C. | James M. Osak
    Are you a MINOR? There is also a charge called "impaired".
    Answer Applies to: Michigan
    Replied: 6/7/2012
    Bernstein & Bernstein, LLC | Lowell E Bernstein
    Technically, yes. if you register between .05 and .08, that can be used along with other evidence but there is no inference of impairment. there also are cuircumstances in which the officer may request a urine or blood sample for suspicion of drugs.
    Answer Applies to: South Carolina
    Replied: 6/7/2012
    Law Office of Michael E. Dailey
    Law Office of Michael E. Dailey | Michael E. Dailey
    Yes. The .08 is a threshold that creates a presumption of intoxication but it can be proven at levels below that also. Mixing booze with medication or drugs of any kind can lead to intoxication to meet the legal definition. Some individuals simply do not handle alcohol very well as with an infrequent drinker and can demonstrate intoxication at a substantially lower level. Also being less than 21 puts a person at a near zero tolerance level of .02 to trigger a charge and loss of license for abuse and lose provisions. A CDL holder may face the same issues with a .04.
    Answer Applies to: Missouri
    Replied: 6/7/2012
    Myles Hahn III Attorney at Law | Myles Hahn III
    Yes. The officer can charge you if he has reason to believe that you are impaired.
    Answer Applies to: Illinois
    Replied: 6/7/2012
    Law Office of Eric Sterkenburg
    Law Office of Eric Sterkenburg | Eric Sterkenburg
    There are two code sections you can be charged under for a DUI. One is for driving with a BAC over 0.08. The other is for driving under the influence. There are no requirements for a BAC on the second one. This is the one that gets you if you are under the influence of drugs. It can be based upon the officer?s observations and confirmed by a blood test or urine test.
    Answer Applies to: California
    Replied: 6/7/2012
    Law Office of Brendan M. Kelly
    Law Office of Brendan M. Kelly | Brendan M. Kelly
    Yes, evidence of impairment below the .08% can lead to a conviction.
    Answer Applies to: Nebraska
    Replied: 6/7/2012
    Kalberg Law Office, L.L.C. | Chris Kalberg
    Yes. It is still possible to be convicted if the breath results are under .08. It will just be somewhat more difficult for the prosecution to prove intoxication without the presumption that the BAC typically provides. That doesn't mean that it is impossible.
    Answer Applies to: Kansas
    Replied: 6/7/2012
    Gary Moore, Attorney at Law
    Gary Moore, Attorney at Law | Gary Moore
    You could, but it would be much more difficult for the State to prove your guilty.
    Answer Applies to: New Jersey
    Replied: 6/7/2012
    Glojek Ltd | Joseph E. Redding
    You can, and you could suffer all the penalties that come with an OWI. My advice is to get an attorney and fight it.
    Answer Applies to: Wisconsin
    Replied: 6/7/2012
    Thomas J. Tomko Attorney At law
    Thomas J. Tomko Attorney At law | Thomas J. Tomko
    In Michigan, you could still be convicted of Operating While Impaired if the prosecutor can establish that the drinking affected your driving. You should consult with the attorney you hire to discuss your case. If you are below .08, with effective posturing and some diligence, you could get a plea to a non-drinking offense. However, this depends on a great number of things. Your attorney should be able to assist you.
    Answer Applies to: Michigan
    Replied: 6/7/2012
    Dungan, Lady, Kirkpatrick & Dungan PLLC | Michael Dungan
    Maybe. There are two flavors of drunk driving. One is if you at or over the legal limit of .08, that is illegal even if you can safely operate a motor vehicle with that level of alcohol in your system. The other flavor is an inability to operate a motor vehicle safely, even if the alcohol level is below a .08. So, it's still possible to get convicted of impaired driving, if the prosecutor can show bad driving because of the alcohol, but generally these cases are fairly easy to defend.
    Answer Applies to: Michigan
    Replied: 6/7/2012
    Pingelton Law Firm | Dan Pingelton
    Yes, but in this case a good lawyer can most likely defeat this charge. Get one.
    Answer Applies to: Missouri
    Replied: 6/7/2012
    Jonathan S. Willett Attorney at Law
    Jonathan S. Willett Attorney at Law | Jonathan S. Willett
    In Colorado a DUI is over .08, a DWAI is from .05 to .08, and an underage DUI .02 to .05. J
    Answer Applies to: Colorado
    Replied: 6/7/2012
    Law Office of Peter F. Goldscheider
    Law Office of Peter F. Goldscheider | Peter Goldscheider
    Yes, it the evidence establishes you were substantially impaired by the alcohol at the time of driving.
    Answer Applies to: California
    Replied: 6/7/2012
    Clos, Russell & Wirth, P.C. | Gary A. Russell
    You would not be convicted of OWI (operating while intoxicated), but you could still be convicted of OWVI (operating while visibly impaired). There is no blood alcohol level requirement for impaired driving. Under the previous law 0.10 was OWI and 0.08-0.10 was impaired. Now it is up to the prosecutor to convince the judge or jury that you were impaired with whatever blood alcohol level you had. OWVI carries most of the same penalties as OWI (maximum 93 days in jail / probation / etc.) the fines are slightly less ($300 vs. $500), the license sanction is less (90 day restricted vs. 30 day suspension followed by 150 day restricted) and the driver responsibility fees are less ($500/yr for 2 yrs vs. $1,000/yr for 2 yrs).
    Answer Applies to: Michigan
    Replied: 6/7/2012
    Randall M. England, Attorney at Law
    Randall M. England, Attorney at Law | Randall M. England
    Yes, the charge is driving while intoxicated, not driving with a high blood alcohol level. In Missouri, it is punishable by up to six months in jail for a first offense. Having a .08% blood alcohol content (BAC) level is not required for a conviction. It is only evidence. If it is .08% or higher, it goes against the defendant's case. If it is below .08% it helps his defense. When I was prosecutor, I would never file a DWI below .08% BAC unless I had strong evidence of intoxication and an explanation for the low BAC level; or unless I had evidence that a second intoxicating drug was contributing to the apparent intoxication. Prosecutors do not enjoy low BAC cases. Get a good DWI criminal lawyer to represent you on this one.
    Answer Applies to: Missouri
    Replied: 6/7/2012
    Universal Law Group, Inc. | Francis John Cowhig
    Yes. There are 2 subsections of Vehicle Code section 23152. Subsection (a) makes it is "unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle" regardless of what his/her blood alcohol reading is. Subsection (b) makes it is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. If you blood alcohol level is below .08, you can still be charged with a DUI. However, an experienced criminal defense attorney may be able to get the charges reduced. I therefore strongly suggest that you consult with an experienced criminal defense attorney prior to going to court.
    Answer Applies to: California
    Replied: 6/7/2012
    Alvin Lundgren | Alvin Lundgren
    The .08 level is the maximum level of a alcohol in your blood by law. However if the State can prove you were still impaired to the point you cannot properly operate a vehicle, you might be convicted.
    Answer Applies to: Utah
    Replied: 6/7/2012
    Lawrence Lewis
    Lawrence Lewis | Lawrence Lewis, PC
    Yes, it is considered a less safe DUI.
    Answer Applies to: Georgia
    Replied: 6/7/2012
    Law Office of James A Schoenberger
    Law Office of James A Schoenberger | James A Schoenberger
    DUIs can be proven based on an officer's observations, field sobriety tests, blood tests and breathalyzer results. It is more difficult to prove a case where the breathalizer is below .08 but it can be done.
    Answer Applies to: Washington
    Replied: 6/7/2012
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    Yes, but you may have a potential defense. Get an attorney now.
    Answer Applies to: Michigan
    Replied: 6/7/2012
    Law & Mediation Office of Jeffrey L. Pollock, Esq.
    Law & Mediation Office of Jeffrey L. Pollock, Esq. | Jeffrey Lawrence Pollock
    One can be convicted based upon failing a sobriety test, although that is much easier to cross-examine/ impeach/disprove than a Blood Alcohol Test for an experienced lawyer.
    Answer Applies to: Pennsylvania
    Replied: 6/7/2012
    Barbara Fontaine, Esquire | Barbara Fontaine
    You could be convicted of reckless driving if you were driving badly, but not of dui unless you were also using drugs, etc.
    Answer Applies to: Rhode Island
    Replied: 6/7/2012
    Law Firm of Martin & Wallentine
    Law Firm of Martin & Wallentine | Jerry Lee Wallentine Jr.
    Yes, you can still be convicted. However, they must prove beyond a reasonable doubt that you were incapable of safely driving.
    Answer Applies to: Kansas
    Replied: 6/7/2012
    Harden Law Offices
    Harden Law Offices | Leonard D. Harden
    Yes NH law says if .03 to .08 test may be introduced as evidence. If .03 presumed not impaired. If .08 presumed impaired.
    Answer Applies to: New Hampshire
    Replied: 6/7/2012
    Moriarty & Associates, PLLC | Patrick M. Moriarty
    The short answer is yes, a person can be convicted of a DUI even if the breath test is below a .08 DUI is defined as driving with a BAC of .08 or higher within 2 hours of driving or driving while your ability to drive is affected by the consumption of alcohol or drugs or the combination of alcohol or drugs. It is recommended that you speak to an experienced DUI attorney.
    Answer Applies to: Washington
    Replied: 6/7/2012
    Law Office of Michael Morgan, l.L.C.
    Law Office of Michael Morgan, l.L.C. | Michael Morgan
    It is legally possible to be convicted of DUI of a DUI with a BAC reading below .08. Generally, I would much rather be the defense attorney than the prosecutor with a case with the BAC registered below .08.
    Answer Applies to: Washington
    Replied: 6/7/2012
    Gutin and Wolverton
    Gutin and Wolverton | Harley Gutin
    Yes. If you blow over .08 there is a presumption that you were impaired. If you blow below .08 there is no presumption but you can still be convicted if the State proves impairment.
    Answer Applies to: Florida
    Replied: 6/7/2012
    Betts Legal Services
    Betts Legal Services | Shawn M. Betts
    A prosecutor can try to prove you were under the influence of alcohol by using other factors besides your test, such as driving conduct, appearance & performance on field sobriety tests.
    Answer Applies to: Minnesota
    Replied: 6/7/2012
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    Yes. A DWI may also include the charge of driving while intoxicated where your driving conduct was affected negatively by the alcohol consumption. However, such a case would pose many difficulties for the prosecution and you would have a strong defense.
    Answer Applies to: Minnesota
    Replied: 6/7/2012
    Connell-Savela
    Connell-Savela | Jason Savela
    In colorado, the lesser is driving while ability impaired and is associated with a BAC of .050 to .079. If there is no test, the DA has to prove your ability to drive an automobile was impaired to the slightest degree mentally or physically by alcohol and/or drugs.
    Answer Applies to: Colorado
    Replied: 6/7/2012
    Klisz Law Office, PLLC
    Klisz Law Office, PLLC | Timothy J. Klisz
    Yes. Bad driving can get one convicted with a .07 or lower. Get an attorney right away.
    Answer Applies to: Michigan
    Replied: 6/7/2012
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    Possible. They can still charge you with VC 23152(a), which isn't BAC-specific.
    Answer Applies to: California
    Replied: 6/7/2012
    The Law Offices of Harold L. Wallin | Harold L. Wallin
    Yes. A DUI only requires that you consumed any amount of alcohol that rendered you incapable of safely operating a motor vehicle. That could be an amount under 0.08.
    Answer Applies to: Illinois
    Replied: 6/7/2012
    Darrell B. Reynolds, P.C. | Darrell B. Reynolds
    It very well could be under certain circumstances.
    Answer Applies to: Georgia
    Replied: 6/7/2012
    Charles Regan Shaw, PLC
    Charles Regan Shaw, PLC | Charles R Shaw
    .05 could potentially lead to an impaired but these are matters are best handle with an attorney.
    Answer Applies to: Michigan
    Replied: 6/7/2012
    Arneson and Geffen
    Arneson and Geffen | Mark Arneson
    Unfortunately it is possible to be convicted of driving under the influence instead of the .08 charge. I say possible, but it will be a tough case for the state to prove. Most of the time the state is willing to reduce the charge.
    Answer Applies to: Minnesota
    Replied: 6/7/2012
    Palumbo and Kosofsky
    Palumbo and Kosofsky | Michael Palumbo
    Yes.
    Answer Applies to: New York
    Replied: 6/14/2013
    Law Office of Jared C. Winter
    Law Office of Jared C. Winter | Jared C. Winter
    There are two charges alleged in DUI cases. They are Vehicle Code sections 23152(a) and 23152(b). It would be impossible to convict on 23152(b) if the BAC was less than 0.08, because that charge requires the DA to prove that you had a BAC of 0.08 or greater. However, the 23152(a) charge has no such requirement. If the DA can prove beyond a reasonable doubt that you were so impaired that you were unable to operate a vehicle with the same care a sober person could, then you could still be convicted of DUI. Practically speaking, however, DAs will rarely pursue the 23152(a) charge if they have a BAC below 0.08.
    Answer Applies to: California
    Replied: 6/7/2012
    Anthony Urie, PLLC
    Anthony Urie, PLLC | Anthony Urie
    You can be convicted if the BAC is less than .08 as the law allows for a conviction if the driver is affected by the alcohol that was consumed. As a practical matter if the BAC is less that .08, a conviction of Negligent Driving is a more likely outcome or an outright acquittal.
    Answer Applies to: Washington
    Replied: 6/7/2012
    Natty Shafer Law
    Natty Shafer Law | Nathaniel Shafer
    In Utah, there are people with alcohol restricted licenses. Assuming you do not have an alcohol restricted license then the state has to prove beyond a reasonable doubt that your Blood Alcohol Content was above .08. If your breathalyzer was below .08, then you have a good case. For best results, hire a lawyer as soon as possible.
    Answer Applies to: Utah
    Replied: 6/7/2012
    H. Scott Basham, Attorney at Law, P.C. | H. Scott Basham
    Yes, in Georgia you can be convicted of "less safe" DUI even if your BAC was below .08.
    Answer Applies to: Georgia
    Replied: 6/7/2012
    Timothy J. Thill P.C.
    Timothy J. Thill P.C. | Timothy J. Thill
    You can be convicted of DUI, assuming the officer's observations of your physical condition are such that you were under the influence. If the result is close to the .08 limit, there is a better chance of getting a conviction, than if the blow was lower. You might be offered a reducer to Reckless Driving by the prosecutor, consider taking that. In any case, retain the service of an attorney, who can get you the best disposition possible in your case.
    Answer Applies to: Illinois
    Replied: 6/7/2012
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    Yes, of regular plain old misdemeanor DUI, just not of the second companion misdemeanor count of driving with over the .08 legal limit. 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 effectively, then hire an attorney that does. I can help you fight the criminal charges and get the best outcome possible. 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, can you be convicted, and what can you do? Raise all appropriate defenses with whatever witnesses, evidence and sympathies are available for legal arguments, for evidence suppression or other motions, or for trial. Effective plea-bargaining, using those defenses, could possibly reduce the potential time and other penalties you face. If you don't know how to represent yourself effectively against an experienced prosecutor intending to convict, then hire an attorney who does, who will try to get a dismissal, charge reduction, diversion, program, or other decent outcome through plea bargain, or take it to trial if appropriate.
    Answer Applies to: California
    Replied: 6/7/2012
    Freeborn Law Offices, P.S.
    Freeborn Law Offices, P.S. | Steve Freeborn
    Yes. If you are under 21, yes, because it is illegal for you to drink. If you have a commercial driver's license, the level is .04. Besides the breath reading, the DUI statute reads, ".... having a breath test result of .08 or above AND/OR your driving is affected to an appreciable degree". As such, you could be convicted based upon observed erratic driving.
    Answer Applies to: Washington
    Replied: 6/7/2012
    Steven Alpers | Steven Alpers
    Possibly. It depends on what was observed.
    Answer Applies to: California
    Replied: 6/7/2012
    San Diego DUI Law Center
    San Diego DUI Law Center | Rick Mueller
    Yes. It's still DUI.
    Answer Applies to: California
    Replied: 6/7/2012
    Border Law Firm
    Border Law Firm | Teresa Lynn Border
    There are 2 ways to be convicted of a DUI in Washington State. It must be proven beyond a reasonable doubt that you were driving with a blood alochol level of .08 or higher OR you were driving under the influence of alcohol and your driving was affected by the alcohol you drank. The State may choose to charge you with First Degree Negligent Driving instead as the BAC was below .08. I suggest you retain an attorney if you have been charged with either offense.
    Answer Applies to: Washington
    Replied: 6/7/2012
    Michael S. Edwards, Attorney at Law, PLLC | Mike Edwards
    The only way you can be convicted if your breath level is below a .08 is if the prosecutor can convince the jury, beyond a reasonable doubt, that you were under the influence of alcohol, drugs or the combined influence of alcohol and drugs to the extent that you could not safely operate your vehicle. If there are no drugs in your case, and a breath test that is below a .08, a good attorney has a HIGH chance of beating this case for you. It is tough for a prosecutor to get a conviction with a jury in a case like that. Good luck!
    Answer Applies to: Utah
    Replied: 6/7/2012
    Law Office of Christopher G Humphrey PC | Christopher G Humphrey
    Yes, you may be convicted if a jury believes your were incapable of safely operating a motor vehicle. It is called DUI, driving while ability impaired.
    Answer Applies to: Wyoming
    Replied: 6/7/2012
    Law Office of James J. Rosenberger | James Joseph Rosenberger
    Yes, you can still be convicted. Even absent a breathalyzer there is often, but not always, other evidence including field sobriety tests, irregular driving, odor of alcohol, admission to having been drinking etc., that play a part in the filing, prosecution and trial of any DUI case.
    Answer Applies to: Washington
    Replied: 6/7/2012
    Miller & Harrison, LLC
    Miller & Harrison, LLC | David Harrison
    Yes. DWAI in Colorado has a presumptive alcohol level of between .05 and .079.
    Answer Applies to: Colorado
    Replied: 6/7/2012
    Bruce Plesser | Bruce Plesser
    Yes.
    Answer Applies to: Florida
    Replied: 6/14/2013
    Kelly Nigohosian | Kelly Nigohosian
    You can possibly be convicted, however, it is much harder to prove with out conclusive breathalyzer results.
    Answer Applies to: Michigan
    Replied: 6/7/2012
    Edward A. Kroll, Attorney at Law
    Edward A. Kroll, Attorney at Law | Edward A. Kroll
    Unfortunately, yes, you can be. In Oregon, the standard is .08+ OR the state can try to prove that your "mental and physical faculties were adversely impaired by alcohol to a noticeable or perceptible degree." So even if you blow below a .08, if a jury believed that you were under the influence by that standard, you could still be convicted. Having said that, it is often difficult for the state to win when the blow is below a .08, and it is even more difficult for the state when you are represented by a good attorney. I would advise you to speak to an attorney as soon as you can.
    Answer Applies to: Oregon
    Replied: 6/7/2012
    Grantland, Blodgett, Shaw & Abel
    Grantland, Blodgett, Shaw & Abel | Gregory M. Abel
    Yes. In Oregon, there are three prongs to the DUII statute. One is the .08, the other two provide for other ways to convict without an .08.
    Answer Applies to: Oregon
    Replied: 6/7/2012
    Law Office of Evan E. Zelig
    Law Office of Evan E. Zelig | Evan E. Zelig
    While you may not be convicted of VC23152(b), driving with .08% or more, it may be possible to still prove you were driving under the influence, which is also a violation of VC23152(a). They are two separate charges in California, and each has different elements the prosecution must prove.
    Answer Applies to: California
    Replied: 6/7/2012
    Gregory Casale Attorney at Law
    Gregory Casale Attorney at Law | Gregory Casale
    Yes you can. Hire a good lawyer. The state can prove that you are under the influence without ANY breath test evidence. Unless you are under .05%, the police can arrest you and prosecute you for OUI (DUI = OUI in Mass). It stands for Under the Influence and that can be proven by breath test evidence or observation of impaired ability. Get a good lawyer who does OUI cases.
    Answer Applies to: Massachusetts
    Replied: 6/7/2012
    Northwest Defense Team, PLLC
    Northwest Defense Team, PLLC | Amanda Kunzi
    Yes. Under RCW 46.61.502 a person can be convicted of DUI in one of 2 ways. Under the first option, a person is guilty of DUI if a breath or blood test shows the blood alcohol level to be at .08 or above. This is the standard that nearly everyone is familiar with. What many people do not know is that a person can also be convicted of DUI if the State can prove the person consumed alcohol or drugs AND the consumption affected the persons ability to drive to any appreciable degree. Sometimes a prosecutor will move forward with a DUI charge when the BAC was below .08 if they believe there is sufficient evidence showing bad driving (swerving for example), or a person performed poorly on the Standard Field Sobriety Tests. If they can prove the alcohol consumption affected the person's driving, the State can charge and prove DUI without a .08 BAC.
    Answer Applies to: Washington
    Replied: 6/7/2012
    Pearson, Butler, & Carson, PLLC
    Pearson, Butler, & Carson, PLLC | Matthew R. Kober
    Yes. The law says it is illegal to drive while impaired. The legislature simply established that .08 is the same as impaired. However, if you are below a .08 and the officer deems that you are impaired based on his evaluation, then you can still be arrested. It will be harder to convict you but it is still possible.
    Answer Applies to: Utah
    Replied: 6/7/2012
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