Low blow DUIs

Not seeking legal advice, just opinions.

Someone I know was involved in a minor car crash. The story is that he was driving on a city street and an oncoming car swerved into his lane. He swerved evasively and sideswiped a parked car. The other car kept going, and there were no witnesses. The driver called the police and reported the incident, then waited for the officer to arrive. As it is part of the police protocol (or so it was explained at the time), the officer administered a breathalyzer. The driver blew positive, but well below the legal limit (don’t know exact value). Nevertheless, this person was cited for DUI, and is currently going through a huge rigmarole including alcohol awareness classes and wearing some sort of monitoring anklet which (he claims) can detect if he has consumed alcohol, which he is supposedly forbidden to do for 90 days. I have heard of this happening to other people as well (ie. testing below the limit and still being cited).

My questions are: Why have a “legal limit” if simply “positive” is sufficient to press charges? Has this, to anyone’s knowledge, ever been challenged? If so, what was the argument for justifying giving a DUI to someone who is below the supposed “legal limit?”

I don’t have an answer, but assuming you’re in the United States, the answer is almost certainly going to depend on state. So you might want to share what state this happened in.

At least some states have a lower level for driving “impaired” as opposed to “under the influence”.


Sometimes, the “limit” may actually be a “per se” limit. The actual offense is driving under the influence in fact, regardless of the actual BAC measurement, and there is a statutory presumption that a person over the BAC limit is under the influence. So, if you blow over the limit, then they are entitled by law to presume that you were DUI in the absense of other evidence (such as your behavior). If you blow under the limit, they can still charge you, but in order to convict they need additional evidence such as testimony that your speech was slurred or that you couldn’t stand up. Blowing under the limit is not an absolute defense.

This is the definition of intoxication as it pertains to Texas DWI laws:

  1. “Intoxicated” means:
    (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
    (B) having an alcohol concentration of 0.08 or more.

The second part of the definition is the “per se” limit that robert_columbia mentions. If the prosecution provides evidence that convinces the jury that the driver’s BAC is .08 or greater, than no further evidence of impairment is needed - impairment is presumed by law. You can still charge somebody who blows under the limit, but in that case impairment has to be proven. This is typically the case when the person may be on a combination of drugs and alcohol; their BAC may be under .08, but the other drugs that they have in their system amplifies the effect of the alcohol. In other cases a driver may be clearly impaired by drugs other than alcohol (“hopped up on goofballs,” as the old timers say). In your friends case the fact that the driver sideswiped a car could have been used to show that the driver was impaired due to alcohol even though the driver’s BAC was below the limit. In my state another possibility could be that the driver was underage, in which case it’s a separate offense (called DUI) to drive with any alcohol in one’s system.

The funny thing is that all this bullshit is going to dissuade him from calling the police if he ever does something like this again. He’ll leave a note on the windshield and go on his merry way, with nobody the wiser.


IANAL, but the punishments you describe sound disproportionately severe under the circumstances. How certain are you of the veracity of your friend’s story?

If someone is pulled over and are intoxicated above the legal limit and showed no judgment/operating error/ability to drive, they will get a DUI.

If someone is pulled over and are below the legal limit and showed error in judgment/operation of vehicle/ability/etc., they can get a “Driving While Under the Influence”.

Same deal if you’re on Rx drugs and drive stupid. You can’t operate a motor vehicle while impaired.

What a shame that this incident will not dissuade him from drinking and driving again.

Who gives a fuck if you drink and drive, if you aren’t impaired?

ETA: obviously the state gives a fuck (I’m sure they looove the fines, etc.) but as far as real world consequenses, it’s bullshit

Most people who aren’t impaired manage to not crash into parked cars.

A crash occurred.
Alcohol was registered.
Several field sobriety tests are generally administered and often put on video.
If the Datamaster doesn’t register high enough, the officers decision about the ability to drive allows him to cite the person. Then the judge decides. It’s the driver’s word against the law enforcement officer who is in court every week talking to the judge and attorneys. In my venue, that’s a DUI.

Remember, impairment can be from alcohol, drugs, other or a combination. The officer does not have instrumentation to check all these things. On the street, he’s in charge.

Since the OP is seeking opinions, this is better suited to IMHO than GQ.

General Questions Moderator

Did your friend get the other car’s license plate number? Were there any other witnesses? If not, then what do you expect the police to think? They know that there was an accident, and that alcohol was involved. The simplest explanation is that the accident was caused by the alcohol, and that the guy was lying.

According to the op the level was “well below” the legal limit. Saying alcohol was involved could just as easily have been someone who just used mouthwash. Either he was affected and could have been tested for it or he wasn’t.

I have a friend who was in an accident where he hit a street sign to avoid another car, which of course left the scene. Since no one else was around, he was held responsible for the damage.

I think the lesson to take away from this is if you’re about to get hit by another car and can’t avoid it without colliding with something else, just let 'em hit you.

Taking the phantom vehicle as writ, THAT was the reason for the crash. Of course we could debate whether said vehicle actually existed. That would be a pointless exercise since none of us were there.

It must be said, if the guy was actually driving drunk, he would NOT have called the goddamn police.

I witnessed a guy (pulling out of a drive through) cause the oncoming driver to destroy his own car to avoid t-boning him. I chased down the driver to get the license # (a temporary tag). The police said it wasn’t traceable. Given the same situation I would now aim for the rear quarter panel and not drive wildly out of the way.

California has a charge referred to as “wet reckless”, which is when you’re below the legal limit, but are driving impaired.

Here’s some info on it from a lawyer’s site.

OK, this makes some sense, given that definition of intoxicated. Thanks for the clarification.

But using the fact of the crash to “prove” impairment seems rather circular. Why not then charge anyone who is in a crash with DUI? If they blow negative, maybe their level is below the limit of detection, or they are (obviously) impaired by some other substance. In all fairness, however, in the several stories I have heard of this nature the drivers all blew positive, but below the limit. So I suppose they were incriminated as intoxicated at the outset.

Nonetheless, it seems to me that if a person blows under the “per se” limit, intoxication should be demonstrated by some means other than the fact of the crash (field sobriety test or something). None of the stories I have heard included that element. But again, in all fairness, I’ve only heard the drivers’ sides of these stories so that detail may have been, “forgotten.”

It also seems that this aspect of the DUI law is not very well publicized. All the public information I can recall seems to focus on THE LIMIT. In a way it seems the limit is of secondary importance, if just blowing positive, in combination with “an incident”, is sufficient. What I mean is that people should know that if they get into any crash - their fault or not - or get stopped for any reason, and they blow positive, they can be charged with DUI. I was not aware of this.