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The sub-0.08% DUI: It can happen to you

If you ask any police officer about the legal limit of 0.08% for blood alcohol concentration, they will tell you not to put too much emphasis on that limit. You can get a DUI even if you're under it.

This is, in fact, one of the more common misconceptions that people hold. They have seen it so many times in movies and TV shows: Someone gets pulled over, gets a breath test, and then gets arrested because their BAC is over 0.08%. It's easy to start thinking that all police really look for is that high reading or that you can't get arrested if you blow a 0.07% instead.

The law

The thing you must understand about the law is this: It does not say that only driving with a BAC greater than 0.08% is illegal. It says that driving when you are impaired by alcohol or drugs is illegal. The 0.08% line is a guideline that the authorities can use because the law assumes that anyone over that limit is impaired.

What the law does not assume is that anyone under the limit is not impaired. They absolutely could be. If the officer decides that you are, you could get arrested no matter what the breath test says.

Drug-based impairment

One key thing to remember here is that you can get impairment charges for driving after using drugs. These may be illegal drugs, but they could also include very legal prescription medications that you needed to take -- but which also made it impossible to drive safely.

In these cases, you could blow a 0.00% on a breath test. It only measures alcohol. That doesn't mean you are not suffering from impairment, and you can still get arrested.

This is important to note because it shows you the intent of the law, which is to take impaired drivers off of the road. Again, that standard can apply to impaired drivers at 0.07% or any other level.

Signs of impairment

If you do get arrested for a sub-0.08% BAC, though, your case has some different complications to consider. Instead of using the breath test alone to show that you drank too much to drive, the police may then need to provide proof of how it impacted you and why that was dangerous. Signs of impairment could include:

  • Running a stop sign
  • Causing an accident
  • Drifting out of your lane
  • Speeding
  • Swerving
  • Braking for no reason

Since the police have the burden of proof on their end, it is very important that you understand what legal defense options you have as the case moves forward.

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