Suppose the BA limit where you live is 0.08. You get pulled over, the cop smells alcohol on your breath and asks you to take a breathalyzer test. You test at 0.07.
Talking to the cop, it comes up that you have been driving for the past two hours, since you left the bar. This would mean that at the beginning of your drive you would have been exceeding the BA limit. Could the cop take any action against you?
Regardless of anything you admitted to, the cop could still arrest you for DUI even if your BAL was under the legal limit. The 0.08 means “if you’re at or over this limit, you’re drunk and can’t argue otherwise,” not “if you’re not at or over this limit, you’re not drunk.”
Huh?
He can still arrest and charge you with “Driving while impaired”
Your evidence as to having been driving for the last 2 hours would only hurt your case, as you were more impaired earlier in your driving.
The best answer is to say as little as possible when speaking to the police. (unless you were the one that called them, to report something else!)
Other than that, I agree with Metacom. Though IANAL, and certainly not yours, nor licensed in your local, etc…
Over .08 is a “de-facto” standard of proving impairment. I know there is a fancy lawyer term, but I’ve forgotten it.
As I mentioned above, it’s not proof that you are not impaired if you come in below that, and can still be charged.
Still not a lawyer, etc…
-Butler
Under the circumstances the OP described, the prosecution could also use Widmark’s formula to demonstrate that the driver was over the legal limit while driving earlier.
A somewhat similar case:
My buddy’s girlfriend hit a parked car in the parking lot while leaving a bar. She drove home, parked in her driveway, shut off the car, then went in her house.
About 10 minutes later she heard a knock at the door. It was the police. Apparently someone had seen her hit the car.
The police made her blow into the Breathalyzer while she was standing on her front porch. She blew over 0.08%. She was arrested for leaving the scene of an accident and DUI. She was found guilty on both charges.
I find her case interesting in the fact that she was charged and found guilty of DUI while she was not in close proximity to her car. Previously I thought you had to be driving in order to be charged with a DUI…
Don’t take this the wrong way, I’m just extrapolating to the extreme…
What would be the lower threshold of “impairment”? 0.00000001%? 0% but you’re an idiot (or even mentally challenged but still with a valid license)? What if you just act drunk but have an imperceptible amount of alcohol? Looks like they would need some sort of lower limit.
The only reason I ask, a buddy was driving me to the airport. I had been drinking most of the day, he’d only had a couple (honestly). He got pulled over and arrested for DUI. They hauled him off, left me and another intoxicated friend stranded on the freeway, in the center, while they towed his vehicle. The DPS wouldn’t let us cross to the side, we had to stand next to the center divider in the fast lane, at dusk, on I-35 just north of downtown Dallas.
The other friend was able to get us a ride back to his house. While I was on the phone (back at the house) trying to re-schedule my flight, the arrested friend comes walking in the door. He almost beat US home! He blew like .04%, a perceptible reading, but less than .08%, and they not only let him go, the Texas Highway Patrol gave him a ride to the friends house.
Also, even though it was evident that both of us that had not been arrested had been drinking, the DPS gave us a chance to drive the guy’s vehicle if we could pass the field sobriety tests. I figured he was setting us up for a public intox, but he swore he just wanted to get the vehicle off the road and wouldn’t arrest us if we failed. It was a non-issue after I blew a .17% and my buddy a .15%, but the officer knew very well that we were somewhat under the influence when he made his offer.
Now I know that one personal anecdote does not make the case, it just strikes me odd that a policeman can say you are under the influence without any alcohol (taking for granted you are not on some other drug).
I’m not a lawyer either, but I think the term you’re looking for is “per se”
Here’s the NYS law:
If your blood alcohol is higher than .08, you’ve violated paragraph 2. If it’s below .08, you may still have violated paragraph 1 or 3
Here’s a thread where this was discussed.
I’m pretty sure she could have refused to blow without penalty in this case. She could have said she hadn’t left the house all evening and without police testimony putting her in the car, they’d have no way to compel her to do anything. She probably admitted to driving and was convinced to blow.
Thanks for the interesting replies. No need to worry about legal disclaimers, this is all hypothetical. 
I always assumed that if you were below the legal limit, you skated. So DUI is drivng under the influence and DWI is driving while intoxicated. Is there some other acronym for driving while impaired?
Could she not have claimed to have had a drink since getting home?
Do people ever get charged and convicted of DOI without any detectable alcohol or drugs in their blood? How does that work in court, is it just a case of the policeman’s word against the defendant that the defendant was somehow intoxicated without any sign of an intoxicating substance?
Just a guess, but I imagine the lower threshold would be some detectable level of alcohol plus behavior. Like if you’re driving 10 mph on the highway, weaving all over the place but the breathalyzer says .04
So far as I know, no state’s law requires that there be a blood-alcohol test. You just have the arresting officer testify “His speech was slurred, he stumbled while walking, I smelled alcohol on his breath. He was drunk, your honour, dead drunk!” then you get someone to testify who witnessed the defendant’s drinking prior to the arrest. Circumstantial evidence is good evidence.
OK, here’s another hypothetical:
You’re at the bar, having had one or two beers, so you’re nowhere near the limit. Knowing you’ve only got a two minute drive to get home, you slam down two or three Jaegers and head for the door. You get pulled over, argue with the cop, and by the time you get tested at the station, you’re well over the limit. Would not being drunk at the time you got pulled over help? Or is this why defense lawyers make the big bucks?
Not in Texas. I’ve also served on a Grand Jury where 3rd DWI felony cases were presented. The word of an arresting officer was not, in itself, always evidence enough to indict. A few cases were no-billed when there was no supporting evidence other than the testimony of the officer (like no documented field sobriety tests, breath tests, that sort of thing).
In the state I live in, refusal of a breathalyzer test is evidence of guilt; this is a fairly recent law. Before this, if you refused you automatically had your license suspended (and this still applies).
A lot of the time it comes down to the police officer’s word versus yours if there is no test.
I was pulled over for flicking my cigarette ashes out the window while driving (FMCAOTWWD?). The cop pulled me over at 3am and asked my why I was motioning him to pass him. I said I was flicking my ashes out the window and gesturing while talking.
The cop then said he smelled alcohol, I told him he smelled my friend, who I was driving home. He said he smelled it on me; I said I was drinking non-alcoholic beer.
I had to get out of the car and do the roadside tests. I counted on my finger tips to 5 and back. He then made me follow his pen light and said I failed when I asked after a minute how long did I have to do this (as long as it takes to fail, I guess).
He then asked me if I had anything wrong with my legs and wanted me to walk heel-to-toe in a straight line. I pointed to the fairly ugly scars on my knees from 2 surgeries and said yes, I do have something wrong with my legs and I not doing that.
I was then arrested for DWI.
At the station, I said I wasn’t taking any tests or signing any forms until I talked to my lawyer. At this time in the morning, I got his voice mail and the test went down as a refusal.
The real eye-opener in the morning was when I read the charging documents upon release.
The documents claimed I had crossed the yellow double line once and then the white line of the shoulder twice, and THAT’S why he pulled me over. It said I failed the pen light test and refused the heel-to-toe for no reason.
At court, my lawyer got him to admit that I was facing his car at 10 feet during the pen light test and asked him how I was supposed to follow this pen light with the emergency lights blazing in my face.
This is when the officer said his emergency lights weren’t on.
COME ON! When has anyone seen someone pulled over by a cop with no lights on? This was a road with one lane each way at 3am!
This brings me to my next point.
There was no white line that I could have crossed on this road. It goes from double yellow line to curb.
The second best part of the trial for me was when my lawyer showed the cop photos of the road after getting him to describe the shoulder in detail.
Lawyer: “Was it asphalt or gravel?”
Cop: “The shoulder was definitely asphalt.” (Probably smugly thinking to himself that I couldn’t use a gravel shoulder as an instability excuse for not taking the heel-to-toe test with my bad knees).
The officer was at a little loss for words when asked to point out the white line and shoulder in the photos of the road where he had to admit the pull-over occurred.
THERE WAS NO SHOULDER OR WHITE LINE THAT I COULD HAVE CROSSED!
The best part of the trial: When the judge asked the prosecutor for a closing argument, the prosecutor just threw his hands up in the air.
The worst part: I had to pay a $100 fine and got a point for crossing the yellow line. Not to mention what I had to pay my lawyer.
Take home message: you can beat the “circumstantial” evidence and police testimony, but you need some evidence in your favor (and the cop’s stupidity helped a lot).
Sorry for the long post, but the BS of that night still burns me. Maybe I should have taken the breathalyzer at the station, but for all I know, I would have been told I failed.
ascenray could a case be won with only the police officers word as evidence? That sounds like a very risky situation for something as important as a DUI charge.
There’s no such distinction in Florida. A DUI is a DUI. There’s no DWI, or any other thing. There’s just one statute with a bunch of different ways to get a DUI.
This is the law in Texas as well, which is a big surprise to many people. The Penal Code definition of intoxication is:
It’s very rare, but you can be arrested for DWI with less that a 0.08 BAC, for example, if you’re a person with absolutely no tolerance for alcohol who’s staggering after 2 and 1/2 beers.
You mean, can the prosecution get a conviction based on nothing more than the officer’s testimony as evidence? Oh, Hell yes. Happens all the time.