If I blew exactly .08, will I be charged for a DUI? 75 Answers as of July 10, 2013

I was pulled over and arrested last night and released on bail the next morning. I was not impaired and did not fail the field test. Do I have a strong case?

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Healan Law Offices
Healan Law Offices | William D. Healan, III
A .08 case is certainly a winnable case as there is a margin of error on the Intoxilyzer. You could have been under the limit if you factor in the margin of error.
Answer Applies to: Georgia
Replied: 7/19/2011
Greenwald, Mayfield & Vigil, LLP
Greenwald, Mayfield & Vigil, LLP | Lauren M. Mayfield
Yes, you can be charged with a DUI even if you blew a .08. The way the DUI law is written is one count is driving under the influence and the other count is driving with a .08 or above, therefore you can be convicted of driving under the influence even if they don't charge you with having a BAC of .08 or above. You should speak with a criminal defense attorney right away so that they can contact the DMV for you to schedule and administrative hearing to protect your license. This hearing will also provide your attorney with access to the calibration records of the breathalyzer machine which will be very important evidence in your case. If the machine was not properly calibrated the results can be kept out of the DMV hearing and this will be very good leverage with the DA to negotiate your charge down from a DUI to something like a dry reckless or a wet reckless.
Answer Applies to: California
Replied: 7/18/2011
Law Office of Cotter C. Conway
Law Office of Cotter C. Conway | Cotter C. Conway
Even If your blood alcohol content is low, you will be charged with a DUI as long as the evidentiary test (blood or breath) is .08 or more by weight of alcohol. However, a low blood alcohol content is defensible due to the margin of error that exists in any scientific test. Furthermore, if you actually did not fail the field sobriety test, then the officer was not allowed to request that you submit to an evidentiary test.
Answer Applies to: Nevada
Replied: 7/15/2011
Michael Breczinski
Michael Breczinski | Michael Breczinski
The answer is that you could be charged but you are right on the edge. Get an attorney and fight the matter.
Answer Applies to: Michigan
Replied: 7/14/2011
Law Offices of Carl Spector
Law Offices of Carl Spector | Carl Spector
A BAC (blood alcohol concentration) of .08% is, by law a DWI, therefore the prosecutors office will in all likelihood charge you with driving while intoxicated and driving while ability impaired (DWAI). Good Luck-
Answer Applies to: New York
Replied: 7/14/2011
    Law Offices of Martina A. Vigil, PC
    Law Offices of Martina A. Vigil, PC | Martina A. Vigil
    Yes! A BAC of .08 is considered being under the influence and you are subject to a conviction. However, PAS (preliminary alcohol screening) tests are subject to many attacks such as the machine not being calibrated correctly, the officer administering the test wrong, and the officer failing to observe the driver for at least fifteen minutes before administering the test. Remember, to suffer a DUI conviction for your BAC being .08%, the DA's Office must prove that you were at least .08% at the time you were driving. Often times, attorneys can establish a rising blood alcohol level which supports the theory that the driver was under 08% at the time of driving.
    Answer Applies to: California
    Replied: 7/13/2011
    Law Offices of Scott Tibbedeaux
    Law Offices of Scott Tibbedeaux | Scott Tibbedeaux
    Yes, under Vehicle Code 23152(b)-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. However, depending on the facts, there some different avenues for defense such as inaccurate testing instruments (e.g. calibration, maintenance), mouth alcohol and acid reflux.
    Answer Applies to: California
    Replied: 7/13/2011
    Giannini Law Office, PC
    Giannini Law Office, PC | Robert Giannini
    If you are 21 years of age or older, then I think you have a great case.
    Answer Applies to: Georgia
    Replied: 7/13/2011
    Palumbo and Kosofsky
    Palumbo and Kosofsky | Michael Palumbo
    If I blew exactly .08, will I be charged for a DUI? Yes I was pulled over and arrested last night and released on bail the next morning. I was not impaired and did not fail the field test. Do I have a strong case? Not really, and you need counsel such as me who routinely handles DWI and traffic matters to represent you.
    Answer Applies to: New York
    Replied: 7/12/2011
    Law Office of Thomas F. Mueller
    Law Office of Thomas F. Mueller | Thomas Mueller
    Yes you will. The DA will be willing to either reduce or dismiss depending on the circumstances.
    Answer Applies to: California
    Replied: 7/12/2011
    Osterman Law LLC
    Osterman Law LLC | Mark D. Osterman
    All depends on the District Attorney and whether they have had a good day. Most of the time it can be reduced to something non-alcohol like reckless or careless, if you get lucky. But the same points apply, so expect a higher insurance bill. Same fines: Don't be looking at that new 4-wheeler.
    Answer Applies to: Indiana
    Replied: 7/12/2011
    Andersen Law PLLC
    Andersen Law PLLC | Craig Andersen
    I tend to urge caution when drawing conclusions as to Field Sobriety performance. At a breath alcohol concentration (BAC) of .08, your ability to perceive events may well have been impaired. At the same time, unless you have a video recording of the FSTs you may be acting on limited information. To answer your question, the prosecutor will review the police report and the breath test document to determine whether charges are appropriate. With a BAC right on the line, you may be able to use your FST performance to negotiate a lesser charge such as Negligent Driving in the first degree. Be sure to send your Department of Licensing (DOL) hearing request form in because you will lose your license automatically if you don't. Ultimately, it would pay for you to retain an attorney because the breath test is a scientific test of some complexity. There may be issues with the test that could result in the test being thrown out or other holes in the prosecutor's case.
    Answer Applies to: Washington
    Replied: 7/12/2011
    Freeborn Law Offices, P.S.
    Freeborn Law Offices, P.S. | Steve Freeborn
    Yes. you very well could be. The standard is .08 or above. If you blow a .08 or above this is a per se violation. It does not matter whether or not you think your ability to operate a motor vehicle was impaired. The simple fact that you blew a .08 is sufficient. Keep in mind also that the breath test level is only one prong of the DUI statute. You could also blow less than a .08 and still be charged. if there is evidence that your driving and physical abilities were affected to an appreciable degree. You also don't say how old you are. If you are under age 21, the .08 is really irrelevant because it is a zero tolerance because it is illegal to consume alcohol under age 21. Also, you did not say whether you have a CDL (commercial drivers license). If this is the case the breath test level is .04 and/or affected to an appreciable degree. This is a very tough law.
    Answer Applies to: Washington
    Replied: 7/12/2011
    Law Office of Andrew Subin
    Law Office of Andrew Subin | Andrew Subin
    You could be, but the charge will likely be reduced to negligent driving in the first degree, which makes in a crime to drive after consuming ANY alcohol.
    Answer Applies to: Washington
    Replied: 7/12/2011
    Law Office of Phillip Weiser
    Law Office of Phillip Weiser | Phillip L. Weiser
    A BAT of .08 will usually result in a DUI charge. I would expect the prosecutor to charge it.
    Answer Applies to: Kansas
    Replied: 7/12/2011
    Law Office of Michael Brodsky
    Law Office of Michael Brodsky | Michael Brodsky
    Surprisingly, you can be changed with a DUI even if you blow *under* a .08! This is commonly referred to as the "affected by" prong and it is used in cases where there is evidence of impairment and a breathtest is suppressed or under .08. DUI's are complicated, expensive and unpleasant beasts. You should contact an experienced DUI attorney to represent you.
    Answer Applies to: Washington
    Replied: 7/12/2011
    Vermeulen Law office P.A.
    Vermeulen Law office P.A. | Cynthia J.Vermeulen
    Whether you are charged with a DWI depends on the outcome of the test you took at the police department, jail or hospital. The Preliminary Breath Test (PBT) result from the roadside is not admissible against you in court. It is a screening tool used to determine whether to arrest you. If you have not yet been charged, you likely took a blood or urine test and the results are not yet known. If the results of this test indicate an alcohol concentration of .08 or more, you will be charged with DWI. In fact, you may be charged with DWI with an alcohol concentration of less than .08, if there were observable signs of intoxication. There are numerous legal and factual issues about any DWI arrest which need to be analyzed by an experienced criminal defense attorney. You should contact one today to discuss the numerous potential consequences to you of a charge of DWI, and for a conviction of DWI, regarding your driving privileges, vehicle ownership, license plates, possible bail requirements and other issues.
    Answer Applies to: Minnesota
    Replied: 7/12/2011
    Anderson & Carnahan
    Anderson & Carnahan | Stephen Anderson
    In Colorado your BAC must be greater than .08 to be convicted of DUI, however there is a lesser offense of DWAI. You should talk to an attorney right away to discuss your options.
    Answer Applies to: Colorado
    Replied: 7/12/2011
    Law Office of Richard Williams
    Law Office of Richard Williams | Richard Williams
    The legal limit in Alabama is .08. Even if you blow a .08 exactly you can be convicted of DUI.
    Answer Applies to: Alabama
    Replied: 7/12/2011
    Bloom Legal, LLC
    Bloom Legal, LLC | Seth J. Bloom
    In Louisiana, the law is written to define the crime of operating as when the "operator's blood alcohol concentration is 0.08 percent or more...." Because of this a registered BAC of .08 can still qualify as DUI. You may have a stronger case to argue for reduced and or suspended sentencing and/or charges because you were so close to the limit. This is something that you would be able to discuss with an experienced DUI attorney in your local area who will be able to help you craft a defense.
    Answer Applies to: Louisiana
    Replied: 7/12/2011
    Law Office of Michael E. Hendrickson
    Law Office of Michael E. Hendrickson | Michael E. Hendrickson
    You've apparently already been formally charged, and, yes, a BAC test reading of. 08 is quite enough for a DUI conviction in the Commonwealth.
    Answer Applies to: Virginia
    Replied: 7/12/2011
    Dunnings Law Firm
    Dunnings Law Firm | Steven Dunnings
    A breathalyzer of .08 is presumed to be operating under the influence. Need to see the police report before evaluating your case.
    Answer Applies to: Michigan
    Replied: 7/12/2011
    Pontrello Law
    Pontrello Law | William Pontrello
    Yes, get a lawyer.
    Answer Applies to: Florida
    Replied: 6/10/2013
    Harrison & Harrison
    Harrison & Harrison | Samuel Harrison
    What was the result of the other test? Georgia requires two tests, and the prosecution has to go by the lower of the two tests. It is extremely rare for both to be exactly the same. Your .08 is the minimum amount for the state to prosecute for DUI by having that amount in your system.
    Answer Applies to: Georgia
    Replied: 7/12/2011
    Thomas J. Tomko Attorney At law
    Thomas J. Tomko Attorney At law | Thomas J. Tomko
    Thank you for yoru inquiry. You will be charged with OWI (operating while intoxicated). The result of .08 or greater will support the charge. It does not matter whether you took any field sobriety tests if the test is admissible as evidence in your case. However, if the test is discredited or inadmissible, the lack of other evidence is important. If there is no other evidence other than the .08, then this helps your defense. For more details, you should consult with your attorney who can review all of the facts in your case. For any chance of getting this case dismissed, reduced, or plead to a non-drinking offense, the advice of an attorney is critical. I hope that this was helpful.
    Answer Applies to: Michigan
    Replied: 7/12/2011
    Dearbonn Law Offices
    Dearbonn Law Offices | Ajibola Oluyemisi Oladapo
    Yes. As long as its .08 or above , you may be charged for DUI.
    Answer Applies to: Washington
    Replied: 6/10/2013
    Wallin & Klarich: A Law Corporation
    Wallin & Klarich: A Law Corporation | Paul Wallin
    If you were arrested for a DUI and blew a .08 the officers likely took your drivers license and gave you a pink paper. You must act within ten days to demand a DMV hearing within 10 days. You should contact a DUI defense law firm immediately in your area because DMV hearings are complicated and you will want an experienced DUI law firm to help you. The DA will likely prosecute you and your defense lawyer will argue you were not intoxicated. However, the DA looks at more than just the blood alcohol result. The DA will look at driving observations by the officer and how you did on the Field Sobriety test. Do not delay. Contact a DUI lawyer to help you now.
    Answer Applies to: California
    Replied: 7/12/2011
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    You can be charged regardless of the BA. Over .08 simply adds an additional charge. Of course you can fight it. 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 and facts are available for legal arguments, for evidence suppression or other motions, or at trial. Effective plea-bargaining, using those defenses, could possibly keep you out of jail, or at least dramatically reduce it. Go to trial if it can't be resolved with motions or a plea bargain. Not exactly a do it yourself project in court for someone who does not know how to effectively represent himself against a professional prosecutor intending to convict and jail you. 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.
    Answer Applies to: California
    Replied: 7/12/2011
    Law Office of Joe Dane
    Law Office of Joe Dane | Joe Dane
    Yes, you can (and probably will) be charged with DUI, but at a 0.08%, you have strong likelihood of a defense or reduction. The specifics beyond just the blood alcohol matter though, so it's worth discussing face to face with a local criminal defense attorney. If they took your license at the time of your arrest, you only have 10 days to request a hearing to challenge the suspension if your license by the DMV.
    Answer Applies to: California
    Replied: 7/12/2011
    Bristol & Dubiel LLP
    Bristol & Dubiel LLP | Murray L. Bristol
    In Texas you can be charged with a Driving while intoxicated charge if you have a .08 or above and/or if you lost your normal use of your physical and/or mental faculties by the introduction of alcohol, drugs or a combination of alcohol and drugs. I would recommend contacting an attorney to learn your legal rights.
    Answer Applies to: Texas
    Replied: 7/11/2011
    Law Office of Peter F. Goldscheider
    Law Office of Peter F. Goldscheider | Peter Goldscheider
    If your breath test at the station (not the PAS test at the scene) tested .08 or above you will certainly be charged. You can be found guilty of a violation of Vehicle Code section 23152 (b) even if it cannot be proved that you are under the influence as evidenced by field tests or other objective signs of impairment.
    Answer Applies to: California
    Replied: 7/11/2011
    Law Office of Thomas A. Medford, Jr., PC
    Law Office of Thomas A. Medford, Jr., PC | Thomas A. Medford, Jr.
    These facts can be extremely helpful in any trial of your case and in the hands of an experienced attorney could result in favorable action by the prosecutor's office.
    Answer Applies to: District of Columbia
    Replied: 7/4/2013
    Apple Law Firm PLLC
    Apple Law Firm PLLC | David Goldman
    You will probably be charged.
    Answer Applies to: Florida
    Replied: 7/4/2013
    Law Office of Michael Bialys THE DUI MAN
    Law Office of Michael Bialys THE DUI MAN | Michael Bialys
    You would likely be charged for a DUI but it may not end up as a DUI.
    Answer Applies to: California
    Replied: 7/4/2013
    Law Office of Jared Altman
    Law Office of Jared Altman | Jared Altman
    Yes, you can be charged and convicted. Yes, you have a pretty strong defense. All machines have some margin of error.
    Answer Applies to: New York
    Replied: 6/10/2013
    Cornish, Crowley, Rockafellow, & Sartz, PLLC
    Cornish, Crowley, Rockafellow, & Sartz, PLLC | Jacob Peter Sartz IV
    I strongly advise to obtain a lawyer to assist you with this matter. If you need specific legal advice, you should consult privately with an attorney. This answer does not contain specific legal advice. Speaking generally, in Michigan, the term "legal limit" and ".08" just differentiates between a possible operating while intoxicated, driving while intoxicated charge, versus a operating while impaired, driving while impaired charge. A driving or operating a motor vehicle while intoxicated charge is typically a more severe charge than "driving while impaired, or "operating while impaired", with a longer possible suspension, long potential penalties, greater costs, etc. Most states, in an effort to differentiate the two, have decided on the ".08" level. However, it varies. Simply because a person is charged, of course, does not mean they are guilty of anything. A person may only be guilty of a lesser offense or they may not be guilty at all. Any charged is presumed innocent until proven guilty, and effective legal council may have a significant impact on their end result. I would recommend you retain an attorney to assist you with this matter. If you cannot afford to retain an attorney, the court may appoint you one upon request.
    Answer Applies to: Michigan
    Replied: 7/11/2011
    The Law Offices of Gabriel Dorman
    The Law Offices of Gabriel Dorman | Gabriel Dorman
    A .08% BAC is right at the legal limit and will most likely result in DUI charges being filed against you. While I know you feel you passed the field sobriety tests don't be surprised if the arresting officer didn't feel the same about your performance as you. You have to understand that from the moment the police pull you over on a DUI, they are only looking for justification to arrest you for a DUI. As such, the safe assumption for you is that you will be charged with a DUI. Now, in general, a .08% BAC is a great place to start if you are charged with a DUI. However, as for whether you have a strong case/defense to the DUI charges will ultimately depend on all of the facts of the case including how you were stopped, your performance on the field sobriety tests, objective symptoms of intoxication, your chemical test reading and any defenses to its validity depending on which test you submitted to. DUI cases are very fact specific and require a much more thorough evaluation of the facts to adequately advise you. So here is what I would suggest for you: 1) Immediately contact and hire an experienced DUI attorney to fully evaluate your case, and 2) Do not forget to contact the DMV to request your DMV administrative hearing within 10 days of the date of your arrest. If you hire an attorney within the 10 days they should do this for you. Failure to request your DMV hearing in a timely manner will result in an automatic suspension of your license in 30 days from the date of your arrest. I hope this answer was helpful.
    Answer Applies to: California
    Replied: 7/11/2011
    Law Offices of Jacek W. Lentz
    Law Offices of Jacek W. Lentz | Jacek W. Lentz
    If the test results were 0.08 % you will most likely be charged with a DUI. However, you might have a pretty good case to reduce or fight your charges altogether. There are a lot of possible factors which might be used for your defense and you should talk to a few attorneys about your case in detail.
    Answer Applies to: California
    Replied: 7/11/2011
    Jules N. Fiani, Attorney at Law
    Jules N. Fiani, Attorney at Law | Jules Fiani
    Yes, if you blew a .08 you can be charged with a DUI. Hire a successful attorney from your area to help you with your current situation.
    Answer Applies to: Michigan
    Replied: 7/12/2011
    Law Offices of John Carney
    Law Offices of John Carney | John Carney
    If you had a .08 BAC you will be charged with DWI and likely be found guilty of Driving While Impaired.
    Answer Applies to: New York
    Replied: 7/4/2013
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    If you had a Blood Alcohol Content .0-8 or more, and you have no prior DWI within the last 10 years, you were charged with a fourth degree offense. This 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 you 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: 7/12/2011
    Nichols Law Firm
    Nichols Law Firm | Michael J. Nichols
    You have a defensible case when the issue of uncertainty in the measurement is factored into the equation. Yes you can be charged but you definitely have defenses.
    Answer Applies to: Michigan
    Replied: 7/4/2013
    Gregory Casale Attorney at Law
    Gregory Casale Attorney at Law | Gregory Casale
    You have a good defense but it sounds as if you have already been charged. The question now is will you be found guilty. A good Criminal Defense lawyer who specializes in DUI, as we do, should be able to mount a good defense based on the little information that you present here.
    Answer Applies to: Massachusetts
    Replied: 7/11/2011
    Timothy J. Thill P.C.
    Timothy J. Thill P.C. | Timothy J. Thill
    Your case revolves upon the observations noted by the officer. You did blow at the legal limit for DUI, but at the low end of same. Hire a good lawyer to represent you in order to get the best possible disposition in your case. You have a good case, if your word is substantiated in the court, but beware, for the officer's word will prevail.
    Answer Applies to: Illinois
    Replied: 7/4/2013
    Craig W. Elhart, P.C.
    Craig W. Elhart, P.C. | Craig Elhart
    The law prohibits a person from operating a vehicle with a blood alcohol content of 0.08 or greater. You could be charged if your BAC was 0.08, however, the prosecutor may offer a plea agreement to allow you to plead to impaired.
    Answer Applies to: Michigan
    Replied: 7/11/2011
    Law Offices of Christopher Jackson
    Law Offices of Christopher Jackson | Christopher L. Jackson
    You have already been charged, so that answer is yes. You will need to find a flaw in the breath machine and probably need a lawyer to help you do that. The hope would be to get the prosecutor to amend the DUI to a lesser charge.
    Answer Applies to: Kentucky
    Replied: 7/11/2011
    Brucar & Yetter, P.C.
    Brucar & Yetter, P.C. | Wayne Brucar
    A breathalyzer reading of .08 is enough to justify a finding of guilty on a DUI. Furthermore, it is unlikely the arresting officer would testify that you "passed" the field tests. That being said, there are many ways to challenge the State's case against you, especially when the breathalyzer reading is .08.
    Answer Applies to: Illinois
    Replied: 7/11/2011
    Collins Law Firm, P.A.
    Collins Law Firm, P.A. | John C. Collins
    You need to hire an experienced dwi attorney. There are many defenses applicable when you blow a .08. Based on what you have stated I would say you have a string case. Of course, this assertion is based on your being charged with dwi and not DUI. DUI is a charge for people under 21 with bac of .02-.07.
    Answer Applies to: Arkansas
    Replied: 7/11/2011
    Moffitt & Phillips, PLLC
    Moffitt & Phillips, PLLC | Brandon Moffitt
    Yes you will be charged with DWI. If you passed all of the test and only blew a 0.08, you should consider hiring a lawyer to fight the case.
    Answer Applies to: Arkansas
    Replied: 7/11/2011
    Harden Law Offices
    Harden Law Offices | Leonard D. Harden
    Increasingly folks are being charged with DWI at or even below the so called legal level. I am also sorry to tell you that you have been charged if you were released on bail. You likely have a strong case, a DWI lawyer would significantly increase your odds of winning. My opinion is to hire the best DWI lawyer in your area.
    Answer Applies to: New Hampshire
    Replied: 7/11/2011
    Austin Legal Services, PLC
    Austin Legal Services, PLC | Jared Austin
    If you blew .08 you were impaired under the law. That is right on the line and is enough to charge you with DUI if they want to. That also doesn't leave much room for machine error or malfunction. Have an experienced DUI attorney review the police report and lab results for any errors that could reduce or dismiss the charges. A good DUI is worth the investment.
    Answer Applies to: Michigan
    Replied: 7/11/2011
    Law Office of Eric Sterkenburg
    Law Office of Eric Sterkenburg | Eric Sterkenburg
    Not just under the facts you stated. You should get it reduced to a wet reckless.
    Answer Applies to: California
    Replied: 7/4/2013
    West law Office
    West law Office | Russell West
    If your BAC was a .08 you can be charged with a DUI. Normally they will charge you after taking you into the station and then give you an arraignment date and some other paperwork regarding DOL action. I would recommend hiring an attorney who can review your case to see if there are any grounds for dismissal and also represent you on your DOL civil case. If everything was done correctly by the officers you probably have a good chance of getting the charged reduced through a plea bargain arrangement.
    Answer Applies to: Washington
    Replied: 7/11/2011
    Law Office of Barry Melton
    Law Office of Barry Melton | Barry Melton
    You may be charged with a DUI if your breath test reading was exactly .08. However, depending on the model of breathalyzer used, .08 may not be sufficient to prove you guilty of violation of Vehicle Code (VC) sec. 23152, subd. (b) (the statute that makes it illegal to drive with a BAC of .08 or more.) With older models of breathalyzers, .08 may be a "rounded" two-place number that actually represents a range between .075 and .084, which would leave room for reasonable doubt as to whether or not you violated that statute. It is of note, however, that VC sec. 23152, subd. (a), is usually charged in conjunction with the "(b)" count. Proof of violation of the "(a)" count is generally not based on machine readings; it relies instead on the officer's observations following the stop. Generally, the prosecution will offer some concession (for example, an offer to accept a plea to a lesser charge) if your BAC was exactly .08, there is no indication that you were taking drugs (whether legal or illegal) that could have impaired your ability to drive, and your field sobriety tests weren't all that bad. This kind of "borderline" test result is exactly the kind of case where having a lawyer can make a tremendous difference in the outcome.
    Answer Applies to: California
    Replied: 7/11/2011
    The Law Firm of David Jolly
    The Law Firm of David Jolly | David Jolly
    If you blew "exactly" 0.08 then the likelihood of you being convicted of a DUI is remote. There is a margin of error with the BAC test and most prosecuting attorneys will likely offer you an amendment (to a lesser charge) if this is your first offense. Get a good attorney though! However, you may still lose your license for 90 days at the DOL hearing, so be cautious.
    Answer Applies to: Washington
    Replied: 7/11/2011
    Castleberry & Elison
    Castleberry & Elison | Peter Castleberry
    In Oregon, it is unlawful to drive with a blood alcohol level of .08 or higher. A potential defense in this scenario is that although you blew a .08 at the time of the test, your actual BAC at the time you were driving was lower. This depends on how much you had to drink in a particular time frame, and the amount of time that elapsed between your last drink, the time you were driving, and the time you took the BAC test. As far as the field sobriety tests, you may be surprised how the police officer reports your performance. The tests are designed to fail. Often clients feel as though they performed well on the tests but the police officer's report would have the reader believe that the subject failed miserably.
    Answer Applies to: Oregon
    Replied: 7/11/2011
    Law Office of William S. Smith
    Law Office of William S. Smith | William S. Smith
    The state can charge you in Massachusetts on either or both of the following theories: (a) that your blood alcohol was .08 or higher while you were operating a motor vehicle (b) that you were operating a motor vehicle while under the influence of alcohol such that your ability to operate the car was impaired, no matter how slightly. As such, yes, you can be charged based on the alleged .08 breathalyzer result alone. However, a qualified, experienced defense attorney can attack the results of the test, both before and at trial. As such, you should retain one immediately.
    Answer Applies to: Massachusetts
    Replied: 7/11/2011
    Law Office of Tracey S. Sang
    Law Office of Tracey S. Sang | Tracey Sang
    .08 is still an illegal BA level. It is, however, the lowest possible illegal BA level and you will almost certainly be offered a wet reckless. If you choose to fight the case, there are many ways to challenge the result and clearly your chances of a challenge are the most favorable with such a low BA level. Good luck.
    Answer Applies to: California
    Replied: 7/11/2011
    Edward A. Kroll, Attorney at Law
    Edward A. Kroll, Attorney at Law | Edward A. Kroll
    You could have a very strong case, but you can still be charged for DUI. In Oregon, the law is that if you drive with a BAC of .08 or more, you can be found guilty. So since you blew .08, you will likely be charged. In addition, how did you know you did not fail the field tests? Did the officer tell you that, or is that your analysis? Regardless, you do potentially have a strong case, but you will need an attorney to help you with your case. If you cannot afford one, you can ask the court to appoint a public defender for you. If you have the resources to hire a lawyer, I recommend you do so.
    Answer Applies to: Oregon
    Replied: 7/11/2011
    Leyba Defense, PLLC
    Leyba Defense, PLLC | Matthew Leyba
    It depends on the Prosecutor and the Police officer. I have had cases when clients have blown .03 and they were charged with a DUI. If you were arrested for a DUI then I would say that there is a very good chance you may be charged with a DUI. However if this is your first offense, and you were not involved in an accident. Then most likely there is a good chance you can get the DUI reduced to a lower offense, or even possibly dismissed. You should speak with an experienced DUI Attorney immediately so you can better understand your options and likely resolutions to your case.
    Answer Applies to: Washington
    Replied: 7/11/2011
    Law Office of Craig E. Gibbs
    Law Office of Craig E. Gibbs | Craig Gibbs
    Yes, .08 is the limit.
    Answer Applies to: Louisiana
    Replied: 6/10/2013
    Klisz Law Office, PLLC
    Klisz Law Office, PLLC | Timothy J. Klisz
    No. There are two different charges and you are at the legal limit. You will need an experienced lawyer on this case.
    Answer Applies to: Michigan
    Replied: 7/4/2013
    Michael R. Nack, Attorney at Law
    Michael R. Nack, Attorney at Law | Michael R. Nack
    I have handled hundreds of DWI cases in the thirty-three years that I have been practicing law. I have handled quite a few cases where the defendant's BAC was .08, and so it is possible that you will be charged. Many of my clients have believed that they did well on the field tests, but the police report always says otherwise.
    Answer Applies to: Missouri
    Replied: 7/11/2011
    Cynthia Henley, Lawyer
    Cynthia Henley, Lawyer | Cynthia Henley
    It is your opinion that you did not fail the tests and that you did not appear to be impaired. The officer who took you in obviously had a different opinion, and his opinion at least appears to be supported by the fact that you blew the legal limit. Whether or not you have a "strong" case depends on many factors including your witnesses, if any, your evidence (such as receipts), your appearance on the video, the ability of the State to relate the breath test and result to the time of driving. (You blew .08 which means you were at the legal limit at the time of the test. But, that does not mean that was the result for the time you were driving. You could have been going up, or coming down - it depends on the facts. Whether the State can attempt to prove the results at the time of driving depends on what you told the officer about your eating and drinking when you were interviewed. Definitely invest in a good DWI lawyer. There is only 1 first DWI - that is the first one you are convicted of. If you get a dismissal or acquittal, then you have a clear slate and get to start over. : )
    Answer Applies to: Texas
    Replied: 7/11/2011
    The Law Office of Lewis R. Rosenblum
    The Law Office of Lewis R. Rosenblum | Lewis Rosenblum
    If you blew a .08 you will likely be charged. If you are a .08 and driving within 3 hours of the test you are presumed driving under the influence. You may have a decent defense depending on what you told the police regarding your drinking pattern. With a .08 a good lawyer may be of use to you.
    Answer Applies to: California
    Replied: 7/11/2011
    The Chastaine Law Office
    The Chastaine Law Office | Michael Chastaine
    You have a good case but you are at the legal limit.
    Answer Applies to: California
    Replied: 7/10/2013
    Law Offices of Matthew Murillo
    Law Offices of Matthew Murillo | Matthew Murillo
    The strength of your case depends on it's details. If you, in fact, blew a .08 on an evidential breath test, then your in a good position. That being said, the law makes it a violation to drive with .08 or more. So, to answer your question - yes, you will be charged with a DUI, in all likelihood. However, oculus getting that .08 from the citation, then you should know that you may have had a higher BAC.
    Answer Applies to: California
    Replied: 7/11/2011
    Law Office of Stephen Pearcy
    Law Office of Stephen Pearcy | Stephen Pearcy
    if you didn't fail the field test, then why'd they arrest you? Did they arrest you for something else and then give you a breath test at the jail? if you blew a .08 in the field, that counts as failing the field test.
    Answer Applies to: California
    Replied: 7/11/2011
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    Yes, you do have a strong case, but you also can be certain that you will be charged with a DUI. No one ever passes FST's, which is simply a tool to assist the prosecutor in obtaining a conviction. Contact a DUI specialist, because you do have a great case, and don't forget the DMV will come after your license so you have only 10 days.
    Answer Applies to: California
    Replied: 7/11/2011
    Law Offices of Phil Hache
    Law Offices of Phil Hache | Phil Hache
    Yes, you do. There may be other factors that are beneficial to your case as well, but a .08 BAC is a good start.
    Answer Applies to: California
    Replied: 6/10/2013
    The Law Office of Kevin O'Grady
    The Law Office of Kevin O'Grady | Kevin O'Grady
    Hiring a DUI attorney is your best opportunity to defend yourself whether you Brac was .08 or any level. Do not count on the generosity of the government. They will charge as much as they can. Hire a Dui attorney now so that the investigation can start fresh. There are short time periods within which to act, especially with regard to your driver's license.
    Answer Applies to: Hawaii
    Replied: 7/11/2011
    Miller & Harrison, LLC
    Miller & Harrison, LLC | David Harrison
    DUI is inferred if the test is .08 or more. In many Colorado jurisdictions, however, you likely would be offered a 'deal' to plead to the lesser offense of DWAI.
    Answer Applies to: Colorado
    Replied: 7/4/2013
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