Will I definitely be considered guilty if I did not pass the breath test? 77 Answers as of July 02, 2013

I blew just a little over .08 on my breath test. I do not want to get convicted of a DUI. Do I have any other defense I could use in my case?

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Michael Breczinski
Michael Breczinski | Michael Breczinski
It depends on the test and if it was inaccurate, your metabolic rate, etc. You would have to hire an expert and that will be expensive.
Answer Applies to: Michigan
Replied: 3/5/2012
Law Office of Phillip Weiser
Law Office of Phillip Weiser | Phillip L. Weiser
Blowing over a .08 is a "per se" violation under Kansas law.
Answer Applies to: Kansas
Replied: 2/28/2012
Anderson Law Office
Anderson Law Office | Scott L. Anderson
It is imperative to have an attorney examine your case immediately to see if you have a defense. Many times there are defenses or facts that support a reduction in the charges.
Answer Applies to: Minnesota
Replied: 2/27/2012
Law Office of Thomas A. Medford, Jr., PC
Law Office of Thomas A. Medford, Jr., PC | Thomas A. Medford, Jr.
Generally not, in the District of Columbia a .08 is by law considered to be proof that you were under the influence. You may be qualified for a DUI diversion program and you should consult an attorney about this.
Answer Applies to: District of Columbia
Replied: 2/27/2012
DeVito & Visconti, PA
DeVito & Visconti, PA | John E DeVito
Massachusetts presumes your guilty if you fail the Breath Test. That does not mean you are guilty; you can challenge the Breath test. The best way to challenge the Breath test is to hire an expert who can explain to the Jury that the result can be flawed. If you intend on fighting the case, hire an experienced DUI attorney.
Answer Applies to: Massachusetts
Replied: 2/27/2012
    Cornish, Crowley, Rockafellow, & Sartz, PLLC
    Cornish, Crowley, Rockafellow, & Sartz, PLLC | Jacob Peter Sartz IV
    You are presumed innocent until proven guilty beyond a reasonable doubt. I strongly advise you to exercise your right to council and either retain a lawyer or ask that the court appoint you a lawyer, payable at the public's expense. You may be only guilty of a lesser offense or no-offense at all. Further, you may have affirmative defenses to the charges that could result in them being dropped. Again, I'd strongly advise you to privately consult with a criminal defense attorney.
    Answer Applies to: Michigan
    Replied: 2/27/2012
    Law Office of Thomas F. Mueller
    Law Office of Thomas F. Mueller | Thomas Mueller
    At a .08 the D.A. will probably offer you a reduced charge. Then you need to decide whether to take it or set the case for trial. The help of a good lawyer is suggested.
    Answer Applies to: California
    Replied: 2/27/2012
    Reeves Law Firm, P.C.
    Reeves Law Firm, P.C. | Roy L. Reeves
    The breathalyzer is only one piece of information. The questions you need answer are: Do you have any medical conditions that would affect the intoxilyzer? Was it operated correctly? Was it calibrated? Does the operator understand the algorithm? Was the operator certified? Did he/she operate per the manual? You also may have defenses related to the stop, was it legal? Was it justified? Was the cop correct in assessing? The short answer is you have defenses as long as you are wiling to use them.
    Answer Applies to: Texas
    Replied: 2/27/2012
    Goodgame Law, LLC
    Goodgame Law, LLC | Jeffrey L Goodgame
    There are many ways a skillful DUI attorney can challenge evidence in a DUI case. A DUI is a serious crime with serious consequences. You should consult a DUI attorney to represent you in this matter.
    Answer Applies to: Alabama
    Replied: 2/27/2012
    Toivonen Law Office | John Toivonen
    If you can prove that you drank just before being pulled over and that your BAC was rising, and that it was not at .08 at the time of arrest you may have a chance of beating the charge.
    Answer Applies to: Michigan
    Replied: 2/27/2012
    Law Offices of Scott G. Hilderman
    Law Offices of Scott G. Hilderman | Scott G. Hilderman
    No, there are many defenses to a DUI and a per se , that is over .08.
    Answer Applies to: Montana
    Replied: 2/27/2012
    Law Office of Ronald Aronds, LLC
    Law Office of Ronald Aronds, LLC | Ronald Aronds
    Each case is unique, so there is a possibility that you may have some defense to this charge. I would have to review all the evidence before I could give you a definite answer.
    Answer Applies to: New Jersey
    Replied: 2/27/2012
    Law Offices of Martina A. Vigil, PC
    Law Offices of Martina A. Vigil, PC | Martina A. Vigil
    Absolutely! PAS and breath machines are subject to so much attack. Further, if you hire an attorney, a deal could be worked out where you plead to a reckless driving offense which is not the same as a DUI conviction.
    Answer Applies to: California
    Replied: 2/27/2012
    Harden Law Offices
    Harden Law Offices | Leonard D. Harden
    The breath test is an estimate of blood alcohol and there are many challenges to it. You should consult with a DWI lawyer.
    Answer Applies to: New Hampshire
    Replied: 2/27/2012
    J.W.Poprawa, Attorney at Law | Joseph W. Poprawa
    A possible defense is the test is if your blood/alcohol limit is over the limit when you were driving not when tested. If you can convince a judge or jury you were below the limit while driving or the test results were inaccurate and you were not under the influence or impaired by the alcohol you would have a defense. You should consult an attorney.
    Answer Applies to: Michigan
    Replied: 2/25/2012
    Law Office of Richard Williams
    Law Office of Richard Williams | Richard Williams
    It may depend on whether you were charged with driving under the influence of you were charged with driving with .08 or more BAC. The results of the BAC reading can be used against you as one of the basis for proof of your intoxication. DUI convictions are normally based on the officer's opinion as to whether you were intoxicated to the point that you were unable to safely operate a motor vehicle on the public highways.
    Answer Applies to: Alabama
    Replied: 2/27/2012
    Gonzalez Law Associates P.C.
    Gonzalez Law Associates P.C. | Carlos Gonzalez
    There are many possible defenses you could have, including that the device was inaccurate.
    Answer Applies to: New York
    Replied: 2/24/2012
    Law Office of Jared Altman
    Law Office of Jared Altman | Jared Altman
    You may have many defenses, including that your reading is within the margin of error for the machine and you should therefore not be convicted. If it's your first offense and there are no aggravating circumstances, you may also be offered a reduced plea.
    Answer Applies to: New York
    Replied: 2/24/2012
    Law Office of Jason D. Baltz | Jason Daniel Baltz
    You have plenty of defenses. First and foremost, the police have to follow procedure and the law. Like all of us, police officers make mistakes and sometimes those mistakes are fatal to the prosecution of an OWI. The police need to have probable cause to pull you over. If they do not have probable cause to pull you over, then the matter should be dismissed. Your best defense (based on what you wrote) is to challenge the results of the breath test. When your breath test was taken, a lot of time probably elapsed since the stop. The results, therefore, reflected the alcohol in your system at the time of the test rather than the time of the stop. Oftentimes, hours go by between the stop and the test. If you, for example, drank a bottle vodka right now, you would not be drunk two minutes from now; however, in an hour, you would be drunk. If you plotted your BAC over the course of that hour, there would be an ascending line from 0.0 to whatever the BAC reading would be after an hour. After a certain period of time, the alcohol will be processed out of your body and that line would start to descend until it hits 0.0. If the stop occurred while your body was still absorbing alcohol and a good amount of time elapsed between the stop and the test, then, in theory, you were under .08 at the time of the stop. One thing you need to remember is that a first offense OWI (assuming that it is your first) is not criminal in Wisconsin. Therefore, you will not be facing any jail time or a criminal conviction. While that sounds great, it is a double-edged sword. Because it is not criminal, you do not have the same constitutional safeguards that a person accused of a crime has, such as a 5th amendment right against self-incrimination or making a jury of your peers decide that you are guilty beyond a reasonable doubt.
    Answer Applies to: Wisconsin
    Replied: 2/24/2012
    Glass Defense Firm
    Glass Defense Firm | Jason M. Glass
    No. The breath machine used in West Virginia, the Intoximeter EC/IR II, is not infallible. To begin with, the machine itself has a margin of error of +/- 5%. At .08 that equates to +/- .004. So, if you blew a .083 you could be anywhere from a .079 up to a .087. This is what we defense attorneys like to call reasonable doubt. Several other factors can effect the reliability of the breath test as well, such as medical conditions (asthma, acid reflux), dental issues (partial plates, bleeding gums), or radio frequency interference (RFI) just to name a few.
    Answer Applies to: West Virginia
    Replied: 2/24/2012
    Dunnings Law Firm
    Dunnings Law Firm | Steven Dunnings
    Yes, hire a lawyer.
    Answer Applies to: Michigan
    Replied: 5/30/2013
    Craig W. Elhart, P.C.
    Craig W. Elhart, P.C. | Craig Elhart
    Depending what "just a little over" really is, the prosecutor, on a first offense, may offer you a plea bargain to impaired driving. This would be done at pre-trial after you have plead not guilty at your arraignment.
    Answer Applies to: Michigan
    Replied: 2/24/2012
    Healan Law Offices
    Healan Law Offices | William D. Healan, III
    There is always a good defense in a case where the breath test is only slightly over the limit. The breath machines have a margin of error. It might be necessary to hire an expert witness if the case goes to trial.
    Answer Applies to: Georgia
    Replied: 2/24/2012
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    Everyone is innocent until proven guilty. 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, reduction, or other decent outcome through plea bargain, or take it to trial if appropriate. When charged or 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 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.
    Answer Applies to: California
    Replied: 2/24/2012
    Cynthia Henley, Lawyer
    Cynthia Henley, Lawyer | Cynthia Henley
    There is no way to guess the defenses available to you until a skilled lawyer reviews all the information. The law does provide that a jury can consider the refusal to take a breath test.
    Answer Applies to: Texas
    Replied: 2/24/2012
    MCCLUSKEY LAW OFFICE
    MCCLUSKEY LAW OFFICE | Mary McCluskey
    The prosecution has to prove guilt beyond a reasonable doubt. Contact a DUI attorney who can challenge the results of the Intoxilyzer machine. These machines are not infallible and there are ways a defense attorney can attack the reliability and accuracy of the results of your breath test.
    Answer Applies to: Colorado
    Replied: 2/24/2012
    Law Office of Patrick E. Donovan, PLLC
    Law Office of Patrick E. Donovan, PLLC | Patrick E. Donovan
    A breath test of .08 or more is considered prima facie evidence that you were impaired. If your breath test was .09, you can still argue that the stop was invalid, the breath test was improperly administered, that you bac was below .08 at the time you were driving. There may be any number of other possible defenses. It depends on the basis for the stop, your performance of any field sobriety tests, whether the officer explained to you your right to refuse to take the test, etc. Consult with a criminal defense attorney that has experience defending DUI cases.
    Answer Applies to: New Hampshire
    Replied: 2/24/2012
    DelSignoreDefense
    DelSignoreDefense | Michael DelSignore
    Cases that are slightly over .08 can often be won there are many ways to exclude the breath test at trial.
    Answer Applies to: Massachusetts
    Replied: 7/2/2013
    Law Offices of Eric J. Bell | Eric J. Bell
    You are not necessarily guilty is you blew over .08. There are several ways to fight this case: breathalyzer machines have a degree of variance to them; the officer who conducted the test has to be certified to administer it; the machine may not be in proper working order; the machine may not be certified accurate at the time you took it; and the officer who made the traffic stop has to have probable cause to believe you were under the influence of alcohol at the time of the traffic stop. There are many other ways to fight DUIs several defenses may be available to you.
    Answer Applies to: Illinois
    Replied: 2/24/2012
    The Short Law Group, P.C.
    The Short Law Group, P.C. | Shawn Kollie
    Although cases with a registered BAC over .08 tend to be more difficult to win at trial, there is no reason to give up all hope. Talk with an experienced Oregon DUI Lawyer who will go over the facts of your specific case to determine what a likely outcome may be. Most DUI Lawyers will offer a free consultation and can help you wade through the complexities of a DUI charge. You may be surprised to realize the motions and arguments that can be made even with a BAC over the legal limit.
    Answer Applies to: Oregon
    Replied: 2/24/2012
    Gutin and Wolverton
    Gutin and Wolverton | Harley Gutin
    Just over the .08 is a good case to take to trial. If there is a video that shows you were not impaired it can rebut the breath test results and argument of the prosecutor.
    Answer Applies to: Florida
    Replied: 2/24/2012
    Brucar & Yetter, P.C.
    Brucar & Yetter, P.C. | Wayne Brucar
    There are numerous ways to challenge a breathalyzer result.
    Answer Applies to: Illinois
    Replied: 2/24/2012
    Law Office of Neal L. Weinstein
    Law Office of Neal L. Weinstein | Neal L. Weinstein
    There is a built-in error in the test. If you were tested at 0.08, you could as easily be a 0.07, so you must challenge both your Administrative Suspension from the Sec of State as well as the case itself by pleading not guilty, asking for a jury trial etc., and filing a motion to suppress. You may have other defenses to the case.
    Answer Applies to: Maine
    Replied: 2/24/2012
    McClendon Owens Melia McBreen LLP
    McClendon Owens Melia McBreen LLP | Richard L. McBreen III
    You are considered impaired by law if you blow .08 or higher, but this does not mean that a conviction is a guarantee. A skilled attorney may be able to have the breath test or other evidence against you thrown out, which could prevent the state from prosecuting you further. However, there are no additional details to evaluate at this time. I suggest you call and hire an attorney as soon as you can so that you can start preparing your defense.
    Answer Applies to: Oregon
    Replied: 2/24/2012
    H. Scott Basham, Attorney at Law, P.C. | H. Scott Basham
    You have the right to a jury trial, regardless of the evidence against you. But if you blew over the limit, your chances of winning are very slim.
    Answer Applies to: Georgia
    Replied: 2/24/2012
    Timothy J. Thill P.C.
    Timothy J. Thill P.C. | Timothy J. Thill
    Yes, there is the possibility that at the time of arrest, you would not have registered a reading above .08. Hire a good defense attorney, you will not prevail without the assistance of counsel, and let him review all the evidence, plus your statement, to figure out what is best for your interests.
    Answer Applies to: Illinois
    Replied: 2/24/2012
    Law Office of Michael Bialys THE DUI MAN
    Law Office of Michael Bialys THE DUI MAN | Michael Bialys
    These can often be lowered to a lesser charge sometimes a non-alcohol related charge.
    Answer Applies to: California
    Replied: 2/24/2012
    Freeborn Law Offices, P.S.
    Freeborn Law Offices, P.S. | Steve Freeborn
    Yes. It does not matter how your driving was or how you may have done on the field sobriety tests. If you blew a .08 or above, and the test is admitted into evidence, you are guilty. You should hire an attorney who can help you with your case. There may be things that he/she can do.
    Answer Applies to: Washington
    Replied: 2/24/2012
    Attorney at Law | Ernest Krause
    The DA will probably offer you a "wet reckless," which is less serious than a DUI. That will probably happen at the arraignment. Tell the DA to give you the "discovery," which is the evidence against you, including the police report. Get a postponement for entry of plea. Tell the judge you need to look at the evidence and look for an attorney. If you get an offer of a "wet reckless" tell the judge you are asking the DA to keep that offer open until the next court date.
    Answer Applies to: California
    Replied: 2/24/2012
    Betts Legal Services
    Betts Legal Services | Shawn M. Betts
    The main issues to challenge a DWI are whether or not a police officer had probable cause to stop your vehicle, whether there was probable cause to place you under arrest, whether you were given the opportunity to contact an attorney before taking a test, and the vailidity of the test. Many jurisdictions will reduce a DWI charge to a careless driving if your test result is at or near the legal limit, even without any other legal defenses. You may want to consider obtaining a chemical evaluation and attending a MADD Victim Impact Panel before you appear in court to help achieve that goal.
    Answer Applies to: Minnesota
    Replied: 2/24/2012
    Kelly A. Broadbent, Esq.
    Kelly A. Broadbent, Esq. | Kelly Broadbent
    You should consult a local attorney. Depending on the specifics of your case it may be possible to contest the accuracy of your breath test. You also may be able obtain a first offender disposition which is different than pleading guilty.
    Answer Applies to: Massachusetts
    Replied: 2/24/2012
    Law Office of Edward J. Blum
    Law Office of Edward J. Blum | Edward J. Blum
    No. You should fight it. The machine has an inherent error rating of .02 meaning it is just as likely a .06 as .08 and above. Fight it and win.
    Answer Applies to: California
    Replied: 2/24/2012
    Law Offices of Shaun R. Marks, P.C.
    Law Offices of Shaun R. Marks, P.C. | Shaun Marks
    A good DUI defense lawyer will know how to challenge your breath test results. There is a very complex science behind the administration of breath tests and how the machine works, and whether it was certified by the operator and calibrated to be working properly. Please do not attempt to do this on your own. Just like you would not do surgery on yourself you should not attempt to handle the complex criminal matter which could have lifelong consequences for you by yourself. I strongly recommend you obtain the services of a qualified dui defense attorney immediately.
    Answer Applies to: Michigan
    Replied: 2/24/2012
    Andersen Law PLLC
    Andersen Law PLLC | Craig Andersen
    The law is quite clear. It is illegal to operate a motor vehicle with .08 grams of alcohol per 210 liters of breath in Washington. Your only hope for beating the charge or getting a plea deal is to hire an experienced DUI defense lawyer. It is possible that a good attorney and a good expert could show a jury that your actual breath-alcohol content was below .08. So you may beat the charge at trial. But be prepared to spend a large amount of money obtaining that result. It is more likely that an experienced attorney could negotiate the charge down to a lesser offense called Negligent Driving in the First Degree. But that will depend on the attorney and the prosecutor assigned to your case. It is possible for you to talk to the assigned prosecutor and try to make that deal but don't wait too long to hire an attorney. Also, you license is currently suspended. The officer should have given you a form at the time of your arrest. Follow the instructions on the form exactly to request a hearing or you license will be suspended for 90 days. After that, you will have to have an ignition interlock on your vehicle for one year unless the hearing is decided in your favor. Don't delay on any of this or you may find yourself spending a day in jail and losing your license. There are also serious fines and costs resulting from a DUI conviction along with some burdensome hoops one must jump to regain one's license.
    Answer Applies to: Washington
    Replied: 2/24/2012
    Palumbo and Kosofsky
    Palumbo and Kosofsky | Michael Palumbo
    No you are not definitely guilty and yes there are many defenses to a DUI. A NYS DUI is a very serious charge call us if you want affordable, high quality representation.
    Answer Applies to: New York
    Replied: 2/24/2012
    Law Offices of Phil Hache
    Law Offices of Phil Hache | Phil Hache
    NO! I have had a lot of success getting DUI charges reduced and in some cases completely dismissed without going to trial. You should NOT blindly enter a guilty plea without having an attorney work this case for you.
    Answer Applies to: California
    Replied: 2/24/2012
    Fagan, Fagan & Davis
    Fagan, Fagan & Davis | Steven H. Fagan
    No. A breath test over a 0.08 level does not mean you have no defense. There are many possible ways to address the breath test, which after all, is simply evidence. A knowledgable and experienced Illinois DUI trial lawyer can best evaluate possible ways to deal with challenging the quality, reliability and admissibility of that and any other evidence being used in the State's attempt to convict you of DUI.
    Answer Applies to: Illinois
    Replied: 2/24/2012
    Ascheman & Smith | Landon Ascheman
    There is very little information to go off of. You need to consult with a criminal defense attorney, like myself, to have us review your police reports. The information provided in individual Q&A forms is not nearly enough information to determine if there is a defense to your case. In addition, while there is the possibility of no defense, an attorney may be able to reduce the charges or penalties.
    Answer Applies to: Minnesota
    Replied: 2/24/2012
    Law Office of Michael R. Garber
    Law Office of Michael R. Garber | Michael R. Garber
    You will definitely be convicted if you go to trial and the test is admitted. However, there are defenses that can be raised that might keep the test from being admissible. If the test is not admissible there is a good chance you will be acquitted if you don't appear intoxicated in the videos of your stop and field sobriety tests. You should talk to a lawyer who handles DWI cases regularly. Cases are fact intensive so the lawyer needs to have all the facts to determine if you have a defense. Even if you can't keep the test out of evidence you might be able to cut a deal before the case goes to trial.
    Answer Applies to: Louisiana
    Replied: 2/24/2012
    Jason Overton, Attorney at Law
    Jason Overton, Attorney at Law | Jason Overton
    You won't necessarily be found guilty. It depends on the specific facts of your case. You need to hire an attorney, and you need to do it as soon as possible. An attorney will know what options are available to you and which defenses apply on your individual case. Some of your options with a DUI are time-sensitive, so get on the ball.
    Answer Applies to: Alabama
    Replied: 2/24/2012
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    Everyone charged with DUI blew at or above a 0.08%. If that was the end then I would have been out of a job a long long time ago. Contact a DUI specialist, who can likely reduce the charge because you are close to the limit. And don't forget, you have only 10 days to save your license.
    Answer Applies to: California
    Replied: 2/24/2012
    The Slate Law Firm
    The Slate Law Firm | Dennis M Slate
    There are a lot of defenses to a DWI breathalyzer case. You NEED to hire an experienced DWI specialist to explore those avenues for you and present your best DWI defense.
    Answer Applies to: Texas
    Replied: 2/24/2012
    Mark Thiessen, Attorney at Law
    Mark Thiessen, Attorney at Law | Mark Thiessen
    Definitely not. I've won everything up to a 0.24 breath test.
    Answer Applies to: Texas
    Replied: 6/19/2013
    The Law Office of Stephanie M. Arrache
    The Law Office of Stephanie M. Arrache | Stephanie Arrache
    There are many defenses to a DUI, especially with a low blood alcohol level. For example, rising blood alcohol levels, mouth alcohol, gastrointestinal issues, etc. Consult an attorney to discuss your options.
    Answer Applies to: California
    Replied: 2/24/2012
    Aaron Black Law
    Aaron Black Law | Aaron Black
    If you are talking about the breath test at the scene- it is not admissible I'm court. You will need to wait for the blood results or the intox result (if you blew into what looks like a big computer). Being over a .08 does not mean you are guilty. Contact a DUI lawyer. There are many defenses to DUI.
    Answer Applies to: Arizona
    Replied: 2/24/2012
    Robert Mortland
    Robert Mortland | Law Office of Robert Mortland
    You might have a defense and a good DUI lawyer will have the blood re-tested or negotiate your case down to a wet reckless.
    Answer Applies to: California
    Replied: 2/24/2012
    Connell-Savela
    Connell-Savela | Jason Savela
    They will probably give you a DWAI offer - there are problems with the tests that we can try to prove - you also have a DMV issue: In response to your DUI Questions: I am a criminal defense attorney that focuses on DUI cases. If you would like to discuss your case, please contact me. Some important information- If you have been served with a Notice of Revocation, then you have 7 days to request a hearing. Please do that immediately by going to your local DMV office, tell them you got a DUI and you want to request a hearing. They will give you a form. DO NOT REQUEST THE OFFICER. We can do that later if we choose to, but most often it means you will lose. The receipt DMV gives you allows you to drive until the day of the hearing. Representation begins when client pays attorney an agreed upon retainer and returns a signed fee agreement.
    Answer Applies to: Colorado
    Replied: 2/24/2012
    Charles M. Schiff, Attorney at Law
    Charles M. Schiff, Attorney at Law | Charles M. Schiff
    You may be able to contest that test result with the aid of a toxicology expert. It is also possible that the prosecutor will choose to offer something less than DUI given the result. You will also want to have someone look at the reasons for the stop to determine whether there is a basis for a constitutional challenge to the arrest and test.
    Answer Applies to: Minnesota
    Replied: 2/24/2012
    Law Offices of James A Bates
    Law Offices of James A Bates | James A Bates
    If you are 21 or over you have a chance. Depending on a bunch of factors like the time of your last drink, you have a good chance of getting the case reduced to a lesser charge.
    Answer Applies to: California
    Replied: 2/24/2012
    Dungan, Lady, Kirkpatrick & Dungan PLLC | Michael Dungan
    There could be many defenses. An experienced DUI lawyer will look at whether there was a proper/lawful reason to pull you over in the first place; whether field sobriety tests were properly given; whether the PBT was properly given; whether the DataMaster/breath test was proper, whether the calibration records are proper, I could write a book on this. NO ONE PLEADS STRAIGHT UP TO DUI WITH A .08. Just because the Datamaster says you were a .08 when the test was given, does not mean you were a .08 at the time you were pulled over. Even if the case cannot be defended, there are resolutions that can save you from jail time and thousands of dollars in financial penalties and driver's license sanctions. If I saw you in court pleading straight up to DUI with a .08 I would want to tackle you to prevent the plea. Don't do it.
    Answer Applies to: Michigan
    Replied: 2/24/2012
    Law Offices of Scott C. Athen | Scott Carl Athen
    You need to speak with an experienced DUI attorney. If the breath test of .08 gets into evidence, you will be found guilty of DUI per se. There are potential defenses that only an experienced DUI attorney will know how to find and exploit.
    Answer Applies to: Maryland
    Replied: 2/24/2012
    The Smalley Law Firm, LLC | Cary Smalley
    If it is your first DUI you can likely obtain diversion, which will drop the charge from your record after a period of time if you complete the diversion requirements.
    Answer Applies to: Kansas
    Replied: 2/24/2012
    The Law Offices of Harold L. Wallin | Harold L. Wallin
    No, you still have defenses to the case. Consult with a qualified attorney in your area.
    Answer Applies to: Illinois
    Replied: 2/24/2012
    Collins Law Firm, P.A.
    Collins Law Firm, P.A. | John C. Collins
    There are a number of defenses we could explore. Sometimes when you blow over the limit you are guilty and sometimes you are not. Find a qualified dwi attorney to discuss your case fully. If you want to do some independent research on the issue you can look at "rising bac defense", blood breath partition ratio, or general variability defenses. Do your research and hire an attorney that can articulate exactly what each defense means to your case.
    Answer Applies to: Arkansas
    Replied: 2/24/2012
    The Gorman Law Firm | Scott Gorman
    There are several defenses that can be raised in any DWI case depending on the facts, and in borderline cases like yours, there are likely additional issues that can be raised concerning the reliability of the Alcotest results. I would be happy to discuss my thoughts if you contact me. As I see it, you have a great deal of incentive to fight this out and I would strongly discourage you from going to court without a knowledgeable attorney in your corner.
    Answer Applies to: New Jersey
    Replied: 2/24/2012
    Law Office of Richard Southard
    Law Office of Richard Southard | Richard C Southard
    The law allows for a reduced charge of driving while ability impaired, which would not result in your having a criminal record. Also there are many things that can affect a breathalyzer reading. I literally have a shelf of books on attacking and defending drunk driving tests. You need to hire an experienced DWI lawyer who can give you a more specific answer.
    Answer Applies to: New York
    Replied: 2/24/2012
    Ellman and Ellman PC
    Ellman and Ellman PC | Kevin Ellmann
    DUI cases present many possible defenses for the experienced DUI defense attorney. There are a number of potential problems that could occur with the Intoxilyzer 5000 breath machine and the testing process that could affect the results. A result reading above .08 does NOT definitively mean you will be convicted. Consult with a qualified attorney soon (as you have only 7 days to request a DMV hearing)! Good luck!
    Answer Applies to: Colorado
    Replied: 2/24/2012
    Law Office of William C. Wood, LLC | William C. Wood
    You may have several potential defenses depending upon the circumstances of your case. Examples include the reason you were stopped, whether the State can prove you were driving or attempting to drive, etc. You may also avoid a conviction and receive Probation Before Judgment if this is a first offense. I would recommend consulting with an experienced DUI defense attorney such as myself to discuss your case in detail.
    Answer Applies to: Maryland
    Replied: 2/24/2012
    Gregory Casale Attorney at Law
    Gregory Casale Attorney at Law | Gregory Casale
    You should consult with a lawyer, like myself, who specializes in OUI cases. There are many defenses available and sometimes there can be problems with the way the Breath Test was given that disqualify it from evidence. Only a lawyer who regularly defends these type of cases will know all of the defenses available. Call a lawyer that is local to the court where you are charged.
    Answer Applies to: Massachusetts
    Replied: 2/24/2012
    The Law Office of Kevin O'Grady
    The Law Office of Kevin O'Grady | Kevin O'Grady
    There are an amazingly large number of potential defenses to DUI/OVUII in Hawaii. Find an attorney that will fight for you and you will see that just because the officer told you you "failed" the sobriety tests or that your breath reading was over .08 does not mean you are or will be found guilty. From the traffic stop, through the investigation and finally the science behind the breath "test", there are many defenses that can be raised. Legal, procedural, factual and scientific avenues of attack are all available. Hire an attorney that will spend the time to use every means available.
    Answer Applies to: Hawaii
    Replied: 2/24/2012
    Law & Mediation Office of Jeffrey L. Pollock, Esq.
    Law & Mediation Office of Jeffrey L. Pollock, Esq. | Jeffrey Lawrence Pollock
    If it is just barely over .08, hire a lawyer to look at the tests and the exact numbers and your prior record to keep you from getting a conviction on your record.
    Answer Applies to: Pennsylvania
    Replied: 2/24/2012
    Furlong & Drewniak PLLC
    Furlong & Drewniak PLLC | Thaddeus Furlong, Esq.
    Depends onany factors , including whether machine was properly calibrated, operator properly trained and certified, and of you had residual mouth alcohol contaminating the test.
    Answer Applies to: Virginia
    Replied: 2/24/2012
    The Rolloff Law Office, LLC | J. Rolloff
    One maxim I live by is - just because someone has been charged does not mean that they will be convicted. Seriously, there are numerous things the police must get right before someone can be found guilty. Therefore, you should never just assume your fate is sealed. Do yourself a favor - talk to an attorney about the specifics of your case.
    Answer Applies to: Minnesota
    Replied: 2/24/2012
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