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December 11, 2020

Low Blow: DWI Charges When BAC Is Less Than the Legal Limit

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Criminal Defense Lawyer

The legal limit for blood alcohol concentration is 0.08% in almost all states. Many people have the mistaken impression that if you test lower than that level with chemical testing, you cannot be arrested or convicted for driving while intoxicated. This is not true.

The law presumes that if your BAC is at or above the legal limit, you are too impaired to drive. The legal term for this is “per se” DWI. However, the question is not whether you were over or under the legal limit but whether you were impaired to the slightest degree due to alcohol or drugs. If the evidence shows that you were, then you can still be arrested, and possibly convicted, of impaired driving.

There are other factors that can influence your case and potentially lead to a DWI conviction even if your blood alcohol was under the legal limit, like a DWI lawyer from a firm like the Law Firm of Frederick J. Brynn, can explain.

Timing of the Test

Sometimes it can take half an hour or more between the time that you are pulled over and arrested and the time you take the breathalyzer test at the station. During that time, your body has had time to absorb some of the alcohol. Therefore, even if you blow below a 0.08 by the time you get to the station, the assumption is that your BAC was likely higher at the time that you were driving, meaning that you may have been impaired.

Use of Other Drugs

A breathalyzer only detects alcohol. It doesn’t pick up marijuana and other substances. Therefore, the combined use of alcohol and drugs may create a condition under which you pass the breathalyzer test with a BAC of less than 0.08, yet you are still too impaired to drive due to the combination of alcohol and drugs in your system.

Driving and Non-Driving Behavior

If your BAC was over the limit, that is pretty clear evidence of your impairment and could serve to convict you at trial. However, it is not the only evidence that can be used against you. Your behavior on or off the road, such as swerving or failing field sobriety tests, can also work against you in the minds of a judge and jury. If law enforcement can produce sufficient evidence to show that you were impaired, your BAC carries less weight than it would otherwise.

Because alcohol has a negative effect on judgment, you may not be able to recognize that you are not fit to drive until it is too late and you have been arrested or worse. A qualified DWI attorney can help explain how the law applies to your situation.

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