if the BAC is 0.08% and you are 0.05% (as an example) is that illegal?
what is the difference between DUI & DWI aside from the words they stand for?
The set BAC (now 0.08 in most states) is the point where you are considered legally intoxicated, assuming you aren’t underage, of course. This has nothing to do with how you handle that amount of alcohol, but since we need a legal definition, that one has been chosen. Not sure what happens if you’re driving recklessly, etc. but under the BAC; most likely at least reckless driving charges, etc. even if there can be no drunk driving charges. Or, for that matter, if you get stopped at a checkpoint and blow but blow low.
The only real difference, in my experience, between DUI and DWI is a preference of one over another in any given part of the country. I’m used to using DWI because that’s what is commonly used in New Mexico. Driving while intoxicated is a narrower phrase than driving under the influence, which could also be applied to any drug, including alcohol. There are most likely laws which also apply to driving under the influence of any illegal substance, which could be referred to as DUI, though I don’t know any off the top of my head.
I live in the sovereign state of Indiana, and, back in the days when the BAC was .10 percent, on four occasions cops let me continue driving after passing breathalyzer tests. I blew .06 (was pulled over for a broken taillight), .03 (had pulled over to sleep because I had worked a 12-hour day, then had a couple of brews with a friend), .02 (yes, I really did have only a couple of glasses of wine) and .04 (had been drinking at a hill out in the country and the police arrived just about 30 seconds after I started the car).
If the cops pull you over, do a BAC test, and find you are NOT over the legal limit, then they will ticket you for whatever it was you were doing that caused them to pull you over in the first place. Usually weaving, crossing the center line, irregular speed, etc., which will generally be charged as “careless driving” (or the more serious “reckless driving” if you are obnoxious to the cop).
If you are not actually pulled over, but are tested at a checkpoint or something like that, they would have to let you continue driving, since you are under the legal limit. Though they would usually caution you, and even encourage you to let a more sober passenger drive.
Regarding DUI & DWI, they usually amount to the same thing. But in some states, they now have 2 levels of ‘drunk driving’. BAC over .10 is DWI, Driving While Intoxicated, a very serious offense. BAC between .075 or .08 and .10 is DUI, Driving Under the Influence, which is treated as a less serious offence under their law.
If the cops pull you over, do a BAC test, and find you are NOT over the legal limit, then they will ticket you for whatever it was you were doing that caused them to pull you over in the first place. Usually weaving, crossing the center line, irregular speed, etc., which will generally be charged as “careless driving” (or the more serious “reckless driving” if you are obnoxious to the cop).
If you are not actually pulled over, but are tested at a checkpoint or something like that, they would have to let you continue driving, since you are under the legal limit. Though they would usually caution you, and even encourage you to let a more sober passenger drive.
Regarding DUI & DWI, they usually amount to the same thing. But in some states, they now have 2 levels of ‘drunk driving’. BAC over .10 is DWI, Driving While Intoxicated, a very serious offense. BAC between .075 or .08 and .10 is DUI, Driving Under the Influence, which is treated as a less serious offence under their law.
The cops will not let you continue to drive if you are obviously impaired even tho you are under the limit. If you can’t pass the field test they will arrest you for driving while impaired.
At least here in Washington, there are two ways to be guilty of DUI: either over the per se limit of .08 (the limit is .02 if you’re under 21 years old), or you are impaired (regardless of your BAC level). It’s the same charge either way.
In 17 years on the job, I’ve only made one arrest of a person who was seriously impaired but under the legal limit.
"What is a “rising BAC defense”?
It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING – not at the time of being TESTED. Since it takes between 30 minutes and 3 hours for alcohol to be absorbed into the system, an individual’s BAC may continue to rise for some time after he is stopped and arrested.
Commonly, it is an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume that the result is .10%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .07%. In other words, the test result shows a blood-alcohol concentration above the legal limit – but his actual BAC AT THE TIME OF DRIVING was below. "
http://www.duicenter.com/faq/#A10
Also for my lovely state of California:
" The state of California has a “zero tolerance” policy for drivers under the age of 21. This means that you can be convicted of a DUI if your blood alcohol level is as low as .01. Your penalties are different and often stiffer."
http://www.youareinnocent.com/dui_lawyers.html
A little background information is necessary. Back in the day, driving while under the influence of alcohol was (DWI) was illegal. The breathalyzer was developed as a way to objectively measure whether of not a person was under the influence. Even with a the breathalyzer though, some defendants still were able to convince juries that they were not under the influence of alcohol and so the states changed the rules, installing a dual system of drunk driving. They made it illegal to drive while under the influence of alcohol, and a separate offense for driving with a concentration of alcohol in the breath, blood or urine over a prohibited level.
In the situation where someone is stopped and has a BAC below the .08 limit, he could still be charged with driving under the influence of alcohol, however, the convictions are harder to obtain for that charge than for the “bright line” charge that a person has tested over the BAC.