Will I be convicted for DUI? 44 Answers as of July 02, 2013

What are the chances of me getting a conviction for having an open container of alcohol inside my car? I was asked to do a breath test and my BAC did not reach the 0.08 limit.

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Cornish, Crowley, Rockafellow, & Sartz, PLLC
Cornish, Crowley, Rockafellow, & Sartz, PLLC | Jacob Peter Sartz IV
With any criminal charge, I strongly urge you to get a lawyer. There can be long-term consequences and you are presumed innocent until proven guilty. Simply because a person is charged does not mean that they are guilty of any offense. The prosecutor must prove guilt beyond a reasonable doubt. You have a right to legal counsel and should not be afraid to exercise your rights.
Answer Applies to: Michigan
Replied: 6/11/2012
Gregory Casale Attorney at Law
Gregory Casale Attorney at Law | Gregory Casale
If you are 21 or over and did not blow .08% it should be helpful. If you are under 21 then it is a 0 tolerance and you will have a more difficult job of winning.
Answer Applies to: Massachusetts
Replied: 3/21/2012
Law Office of Phillip Weiser
Law Office of Phillip Weiser | Phillip L. Weiser
If no DUI was charged, then you possibly will only be charged with unlawfully transporting an open container of alcohol. You should know by now if there was a DUI charged.
Answer Applies to: Kansas
Replied: 3/16/2012
Law Office of Richard Williams
Law Office of Richard Williams | Richard Williams
A conviction for DUI does not rest solely on whether you blew .08 or higher. The burden of proof is almost always the officer's opinion that you were too intoxicated to safely operate a motor vehicle on the public highways.
Answer Applies to: Alabama
Replied: 3/16/2012
Freeborn Law Offices, P.S.
Freeborn Law Offices, P.S. | Steve Freeborn
If you are under 21, you have additional legal issues to deal with. The .08 is only one prong of the DUI statute. In other words, you can be under a .08,, but if your driving has been affected to an appreciable degree by your consumption of alcohol and or drugs, then absolutely you can be charged with DUI (driving under the influence). It matters if you have criminal history or prior driving and alcohol related offenses.
Answer Applies to: Washington
Replied: 3/14/2012
    Kenneth M. Hallum, Attorney at Law
    Kenneth M. Hallum, Attorney at Law | Kenneth M. Hallum
    Assuming the open container charge is solid you will most likely be convicted of that charge, however DUI is a complete separate allegation, even though where there's smoke there's fire, that is not your case. Because you did not surpass .08% you are partially safe. There is a separate section of DUI that is based on impairment even under .08%. If the prosecutor seeks this charge, consult a local DUI attorney, you may have a very defendable case.
    Answer Applies to: California
    Replied: 3/14/2012
    Toivonen Law Office | John Toivonen
    While a driver with a .08 BAC will be charged with Operating While Intoxicated (OWI), a driver with a lower BAC level can be charged with Operating While Visibly Impaired. Even without a 0.8 BAC level is possible to charge the driver with OWI based on other factors such as dangerous, high-speed driving, and slurred speech. For example, a driver could have been traveling at 60 mph in a residential area, and then swerved off the road and struck a car. When the police arrived the driver could not walk a straight line, and his speech was slurred. While he only had a .07 BAC prosecutors could use these other factors to establish an OWI.
    Answer Applies to: Michigan
    Replied: 3/14/2012
    Klisz Law Office, PLLC
    Klisz Law Office, PLLC | Timothy J. Klisz
    You are guilty of the open container. The DUI, not so much unless you were driving real poorly. It sounds like you need a good attorney to assist you.
    Answer Applies to: Michigan
    Replied: 3/14/2012
    Thomas J. Tomko Attorney At law
    Thomas J. Tomko Attorney At law | Thomas J. Tomko
    Where you end up will depend on a number of facts in your case. The fact that you did not register above .08 is a good start. This means that you may be charged with the lower offense of operating while impaired. Prior law would create a presumption that you were not intoxicated. Not so today. Today the prosecutor can show that you impaired by admissions about drinking, observed driving, smell of intoxicants, field sobriety tests, and other evidence. If you have no prior offenses, the perhaps yours is a good one to set for a trial, or perhaps through negotiation it could be changed to a non-drinking offense. If interested in hiring an office like mine to craft your defense, you should call for an appointment.
    Answer Applies to: Michigan
    Replied: 3/14/2012
    Law Office of Peter F. Goldscheider
    Law Office of Peter F. Goldscheider | Peter Goldscheider
    One thing has nothing to do with the other.
    Answer Applies to: California
    Replied: 3/14/2012
    Law Office of Brendan M. Kelly
    Law Office of Brendan M. Kelly | Brendan M. Kelly
    A open container of alcohol is a violation of the law, so if you were ticketed for it your looking at a conviction. With a good lawyer we may be able to get the matter reduced or resolved without a conviction.
    Answer Applies to: Nebraska
    Replied: 3/14/2012
    Law Offices of George Woodworth & Associates
    Law Offices of George Woodworth & Associates | George Woodworth
    If you had an open container in the car then you are likely to be convicted for that, but not necessarily the DUI. Without a .08% breath result, and no evidence of you using any drugs then a good, experienced Attorney should be able to help you avoid a DUI conviction.
    Answer Applies to: California
    Replied: 3/14/2012
    McClendon Owens Melia McBreen LLP
    McClendon Owens Melia McBreen LLP | Richard L. McBreen III
    Having an open container in your vehicle is a violation, but it alone can't sustain a conviction for DUII, especially with a breath test under the legal limit. With that said, the state will likely proceed if they believe they can prove you were under the influence of alcohol while driving. You should contact an attorney to discuss your case in more detail, and you should hire one you like in order to put the best defense forward for trial.
    Answer Applies to: Oregon
    Replied: 3/14/2012
    Law Offices of John Carney
    Law Offices of John Carney | John Carney
    You will probably be convicted of a DWUI violation if you retain a good criminal lawyer.
    Answer Applies to: New York
    Replied: 3/14/2012
    Anderson Law Office
    Anderson Law Office | Scott L. Anderson
    Being under .08 is certainly an advantage. Having an open bottle is a separate offense.
    Answer Applies to: Minnesota
    Replied: 3/14/2012
    Timothy J. Thill P.C.
    Timothy J. Thill P.C. | Timothy J. Thill
    If you were not charged with DUI, but transportation of open alcohol, you stand a good chance of a conviction on that charge, but if you were charged with DUI, you do not provide enough information on which to form an opinion of whether you will be convicted or not, except that your breath test would definitely work in your favor. In any case, hire good counsel to represent you in court.
    Answer Applies to: Illinois
    Replied: 3/14/2012
    Law & Mediation Office of Jeffrey L. Pollock, Esq.
    Law & Mediation Office of Jeffrey L. Pollock, Esq. | Jeffrey Lawrence Pollock
    Based on what you described, you are in the clear.
    Answer Applies to: Pennsylvania
    Replied: 3/14/2012
    Michael Breczinski
    Michael Breczinski | Michael Breczinski
    You may be convicted of impaired driving which does not have a lower limit. It depends on wheter they can show that your drinking impaired your driving. You need a good attorney.
    Answer Applies to: Michigan
    Replied: 3/14/2012
    H. Scott Basham, Attorney at Law, P.C. | H. Scott Basham
    Even if you are under .08 BAC, you can still be convicted of DUI in Georgia if you are under the influence of alcohol (or a drug, whether legal or illegal) to the extent that it makes you "less safe" to drive.
    Answer Applies to: Georgia
    Replied: 3/14/2012
    Gonzalez Law Associates P.C.
    Gonzalez Law Associates P.C. | Carlos Gonzalez
    You may be convicted of driving while ability impaired below .08 but above .05. If you are within this grey area contact an attorney immediately.
    Answer Applies to: New York
    Replied: 3/14/2012
    Lawrence Lewis
    Lawrence Lewis | Lawrence Lewis, PC
    What are the chances of you being convicted for DUI, with an open container in the vehicle? Or what are the chances that a DUI will be pled down to an open container? Or what are the chances with an open container in the vehicle, you will be convicted of a DUI? What are you asking? Recognize without more facts it is impossible to answer the question.
    Answer Applies to: Georgia
    Replied: 7/2/2013
    Law Office of Jared Altman
    Law Office of Jared Altman | Jared Altman
    Believe it or not, you can still get convicted of DWI based on the officer's observations.
    Answer Applies to: New York
    Replied: 3/14/2012
    Kelly A. Broadbent, Esq.
    Kelly A. Broadbent, Esq. | Kelly Broadbent
    Having an open container in MA is a civil infraction. It may or may not hurt your chances of being convicted of OUI depending on the other facts of the stop and arrest.
    Answer Applies to: Massachusetts
    Replied: 3/14/2012
    Quitmeier Law Firm, P.C.
    Quitmeier Law Firm, P.C. | William M. Quitmeier
    You will likely not be convicted of DUI since you below the .08 and I assume are 21 or over, but maybe open container in a motor vehicle.
    Answer Applies to: Missouri
    Replied: 3/14/2012
    Mark Thiessen, Attorney at Law
    Mark Thiessen, Attorney at Law | Mark Thiessen
    You can get a ticket for open container, but not necessarily a DWI. You need to hire a DWI attorney and fight it with everything you got.
    Answer Applies to: Texas
    Replied: 3/14/2012
    The Law Office of Kevin O'Grady
    The Law Office of Kevin O'Grady | Kevin O'Grady
    Hiring an attorney to fight your DUI case is the best chance you have of not getting a conviction for DUI. The best chance of GETTING a conviction is to hire an attorney to have you plead guilty. There are many ways to attack a DUI charge, even before your first court appearance. A good DUI attorney will fight with every legal, factual and scientific tool available. Remember the burden is on the prosecution and a good DUI attorney will make it difficult if not impossible for the prosecution to prove its case.
    Answer Applies to: Hawaii
    Replied: 3/14/2012
    Meadows & Howell, LLC
    Meadows & Howell, LLC | Brad Howell
    If you received a citation for an open container, but were not arrested for a DUI, then you are not being charged with a DUI. It is possible that the prosecutor could review the case, have an officer issue a charge for DUI, and then attempt to move forward with the DUI charge in court, but this is highly unlikely. If the officer didn't charge you with it, then typically the prosecutor is not going to attempt to seek additional charges that don't currently exist.
    Answer Applies to: Alabama
    Replied: 3/14/2012
    Betts Legal Services
    Betts Legal Services | Shawn M. Betts
    If you did not test over .08, and your driving conduct was not egregious, it is highly unlikely that you would be convicted of DWI, regardless of the open container.
    Answer Applies to: Minnesota
    Replied: 3/14/2012
    Law Office of Charles J. Block
    Law Office of Charles J. Block | Charles J. Block
    Depends on what town you were pulled over in.
    Answer Applies to: New Jersey
    Replied: 6/18/2013
    Connell-Savela
    Connell-Savela | Jason Savela
    In Colorado, DWAI starts at .05 BAC.
    Answer Applies to: Colorado
    Replied: 6/18/2013
    Glass Defense Firm
    Glass Defense Firm | Jason M. Glass
    You do not have to have a BAC above 0.08 to be convicted of a DUI in West Virginia, if the state can prove by other means that you were impaired.
    Answer Applies to: West Virginia
    Replied: 3/14/2012
    Bensmochan & Poghosyan, LLP
    Bensmochan & Poghosyan, LLP | Ruzanna Poghosyan
    Just having "an open container inside your car" does NOT make you a DUI. Prosecutors, of course, will take it under their consideration, but that evidence alone it is not enough to convict you for DUI. It is good that your BAC was below .08%, but it is not determinative either. I strongly recomend you to contact a criminal defense / DUI attorney to discuss your case privately.
    Answer Applies to: California
    Replied: 3/14/2012
    The Law Office of Stephanie M. Arrache
    The Law Office of Stephanie M. Arrache | Stephanie Arrache
    If you are under 21, then any alcohol in your blood will qualify you for DUI. However, if you are over 21, then they cannot necessarily prove a DUI if you had blood under .08.
    Answer Applies to: California
    Replied: 3/14/2012
    Pingelton Law Firm | Dan Pingelton
    Probably not for a DUI. It's possible, but only psychotic prosecutors will try to get a DUI with less than a .08. If they try, fight it, and you'll most likely win.
    Answer Applies to: Missouri
    Replied: 3/14/2012
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    The honest answer is that no attorney can predict the outcome, nor even give an intelligent opinion, without reviewing and knowing all the charges, evidence, police reports, testimony, priors history, etc. Of course 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, 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. If you don't know how to represent yourself effectively against an experienced prosecutor intending to convict, then hire an attorney that does, who will try to get a dismissal, diversion program, charge reduction, or other decent outcome through plea bargain, or take it to trial if appropriate.
    Answer Applies to: California
    Replied: 3/13/2012
    Andersen Law PLLC
    Andersen Law PLLC | Craig Andersen
    Lawyers don't lay odds. Without more information on the facts of the arrest, your age, your license status, even a fortune teller couldn't tell you what a jury would do.
    Answer Applies to: Washington
    Replied: 3/13/2012
    Healan Law Offices
    Healan Law Offices | William D. Healan, III
    If you were under the limit, you generally have a pretty good case.
    Answer Applies to: Georgia
    Replied: 3/13/2012
    Law Office of Patrick E. Donovan, PLLC
    Law Office of Patrick E. Donovan, PLLC | Patrick E. Donovan
    In NH, the State must prove that you were impaired to any degree, but they must prove it beyond a reasonable doubt. A breath test result that is under .08 is good evidence that you were not impaired but it isn't conclusive. The officer may still have probable cause to support the arrest based on his observations of your driving and sobriety tests results. That being said, anytime you have a BAC result that is under the legal threshold, you have a good case and one that you should defend.
    Answer Applies to: New Hampshire
    Replied: 3/13/2012
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    If you blew under 0.08 and you are over 21 you probably won't get a DUI. As for the open container, it is a relatively minor charge. But since it is still a misdemeanor, you ought to get a lawyer, who can negotiate with the Judge so that you can earn a dismissal.
    Answer Applies to: California
    Replied: 3/13/2012
    The Law Offices of Victor J Mazzaraco
    The Law Offices of Victor J Mazzaraco | Victor J Mazzaraco
    Undoubtedly you were charged with both the A & B sections of VC23152. One requires a BAC of .08% or > but the other requires you to be impaired while driving, regardless of what your BAC is. Usually, however, if a defendant has a BAC of less than the legal limit - and drugs were not discovered on hm or his person, or in his vehicle - no DUI charge occurs. The open container is an offense but small potatoes compared to the DUI charge.
    Answer Applies to: California
    Replied: 3/13/2012
    Ellman and Ellman PC
    Ellman and Ellman PC | Kevin Ellmann
    The answer would depend on what other evidence they might have, such as bad driving, performance on roadsides, admissions, other indicia of intoxication. Sounds like you might have a winnable case, but I would suggest you consult with an experienced DUI defense attorney. Good luck!
    Answer Applies to: Colorado
    Replied: 3/13/2012
    The Short Law Group, P.C.
    The Short Law Group, P.C. | Shawn Kollie
    Under Oregon law and individual can be charged with DUI if they have a BAC over .08 at the time of driving, OR are 'intoxicated to a noticeable degree'. The officer in this scenario may have believed you were intoxicated to a noticeable degree and thus charged with DUI. An experienced DUI Lawyer may help you to fight this case at trial or help to determine what route may be best. Contact a local DUI Lawyer with the facts of your case.
    Answer Applies to: Oregon
    Replied: 3/13/2012
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