The Legal Limit is Not Really .08

The law defines the crime of driving under the influence (DUI/DWI) as driving with an alcohol concentration at .08 or higher. (See Male and Female BAC Chart.) We all know this. It is virtually impossible to miss the .08 signs on the side of the road, the TV public announcements, the motor-vehicle driving booklet, the news reports about DUI laws, etc., etc. What is not well known about the DUI laws is that it has another definition. It is illegal to drive when a person is under the influence of or affected by alcohol and/or drugs. In other words, a person is guilty of DUI if his or her ability to drive is lessened to any appreciable degree, regardless of the quantity of alcohol or drugs in their system.

This means that a person who blows below .08 may be arrested, charged, and convicted of DUI. It also means that a person with no alcohol in their system, but who has some quantity of drugs in his or her system, including prescription medications, may be convicted of DUI. This part of the law is not well known or understood by the public. I have represented many individuals who have been accused of DUI with very low alcohol concentrations—as low as .02, the equivalent of a 12 oz. beer. Also, I have represented senior citizens who have been accused of DUI when they had taken only their prescribed medication as ordered by physicians. Surprisingly, it is not a defense to the charge of DUI that the person was entitled to use the prescribed medication.

People who find themselves in this situation are shocked when they discover these details about the DUI laws. On top of being scared, ashamed, and depressed, they feel a great sense of frustration because they believe, and rightly so, that they were misled by the government. Often I hear questions like how fair is it for the government to profit from alcohol sales and at the same time prosecute people who don’t exceed the legal limit? How can an elderly person with a clean record be accused of DUI when they were taking their meds as required? The answer to all of these questions, of course, is unsettling and unsatisfying–that’s the law! The Legislature, in its infinite wisdom, passed these laws believing them to be right.

The shocking revelations about the DUI laws do not end here. It actually gets worse when these folks find out that the evidence to be presented against them often consist solely of the subjective opinion of the arresting police officer. The officer will be called at trial to express an opinion about the accused’s sobriety state, citing to his or her experience as a police officer and to his or her observations about the accused. The testimony is often bolstered by reference to roadside tests, otherwise known in law enforcement circles as field sobriety tests, which are not even designed to measure a person’s ability to drive. These tests are no more than physical exercises designed to create imbalance, but spun to convince a jury that they mean something a kin to a forensic breath or blood test.

There is no question that driving intoxicated is dangerous and it should be stopped. Also, there cannot be any question that the laws as they stand leave too much room for unfair treatment and unjust prosecutions. Perhaps the law should be that no person should drive after consuming any amount of alcohol. That way, every citizen will clearly understand what is expected and what the law requires. Most importantly, it removes from the equation the flaw in prosecuting and convicting persons on the subjective opinion of witnesses.


Image credit Marvin Kuo.