A thought/question came to mind while reading an article the other day, and I've decided to see what the board LEO's have to say about it...

The article I was reading stated this particular driver was nearly 2 times the legal limit on BAC, so naturally they were arrested for DWI. I got to thinking, and wondered what happens to a driver who is stopped and blows a breathalyzer test that is just UNDER the legal limit? Do the cops let them drive away, or do they have to go sleep it off in a cell but without legal charges?

I had never given this scenario any thought before, so just thought I'd ask it here. Thanks!

In some states, blowing a 0.04 is DWAI "Driving While Ability Impaired" as opposed to "Driving While Intoxicated" at 0.08

Having a CDL may get you a DWI at 0.04, as the standard for CDL can be different.
(Not a cop or a drunk)

Bruce

I know a guy from high school that got two DUIs and in both cases his BAC was below .08.

I think if the LEO determines that the person is too “intoxicated” to drive, regardless of BAC level, they can arrest for DUI.

To the main thrust of your question, it's state dependant.

In Oregon, there is no breathalyzer during the stop, only the field sobriety test. If you fail that, you're getting arrested and processed, even if you pass the calibrated breathalyzer back at the jailhouse.

I personally would expect to get hauled in if I had been drinking at all... limit reached or not! Not sure what the rules are in the state of Alabama on this, but my curiosity got the best of me and I had to ask!

I often come up with such strange questions while trying to go to sleep at night, and they'll keep me awake all night if not answered. This is one I've been pondering for several weeks but never could remember to ask about here!

Oregon has two DUI standards, BAC and "under the influence of..."

You can be convicted on either independently.

The second is much more subjective, but that's where the horizontal gaze nystagmus, walk & turn, and other standardized field sobriety tests come in.

Our term for someone blowing under the limit was "blowing green." If someone blew green, many to most were turned over to a responsible party if possible, but some were arrested.

Blowing at or above is prima facie for intoxication so that's what were gunning for...but you don't need it for an arrest. If a person exhibits signs of intoxication with observations and the standardized field sobriety test, it is possible to probable he/she is going in.

For my last couple of years, our judicial district was no refusal so it was either breath or blood. If you don't blow, you WILL give blood or it will be taken against your will. SO...since blood specimens don't give you an immediate result like a breath test, you are arresting with observations and the standardized field sobriety test.

Remember, a breath test gives a BrAC, which is breath alcohol concentration which isn't BAC which is blood alcohol content. BAC at or above the limit is THE BEST evidence for conviction unless your attorney can kill that evidence with the many toys in his bag.

In addition to field sobriety tests, driving behavior also enters into the equation. Virginia is a state where a BAC between .04 and .08 is not an automatic presumption of guilt, but a finding of guilt can be made depending on the facts.

Under .04, or even .00, can result in a DWI conviction depending on the situation. If drugs are involved, the driving behavior and field sobriety tests indicate impairment, a person would probably be convicted.

We had a tea totaler at one department I worked at. On the occasion where he had his first beer, he was drunk. He swore he would not have another drink in his life. At most, he would have been .04BAC.

I got pulled over years ago as a young 'un. I had to take a field sobriety test. Officer said he estimated me at .08. Back then the legal limit was .10. He let me drive away. But I think he did me a big favor.

"Buzzed" driving is treated the same as drunk driving. (This according to commercials run by our public safety department.) One can be impaired without equaling or exceeding the .08.

Pennsylvania has (among other things) "with a BAC of at least" (and different penalties based on the driver's BAC.) There also is "under the influence of alcohol to a degree which renders [him] incapable of safe driving").

As others have said, the limit for a CDL is a 0.4, and as I understand it when such a driver reacquires his suspended license, it comes back as a regular license, not a CDL.

Drift: I used to party with several ADAs and staff. The Pensacola PD put on a BrAC test for any DA employee that wanted to participate: they drank two mixed drinks at a popular downtown bar, then walked to the nearby HQ and were tested. Several girls participated because the drinks were free. Nearly all tested over 0.10.

quote:

Originally posted by cne32507:

Drift: I used to party with several ADAs and staff. The Pensacola PD put on a BrAC test for any DA employee that wanted to participate: they drank two mixed drinks at a popular downtown bar, then walked to the nearby HQ and were tested. Several girls participated because the drinks were free. Nearly all tested over 0.10.

Kind of a similar thing, I used to work for a flight training outfit that specialized in instrument training. Some of the instructors would gather for pizza and beer at a nearby place, after work.

One day we get the bright idea of seeing how much beer it would take to render a pilot incapable of flying precisely (answer: not very much at all!).

We shared a few pitchers of beer along with our pizza, then walked back to our training facility and ran some scenarios in the simulators. Piss poor performance, even from those who had just had a couple of glasses of beer.

Fascinating information here.

The Army has a belief that even if you have 1 beer, you shouldn't be driving. But then again, this is the same organization that believes you can work a 24 hour shift and then drive home on your own. I've read studies where lack of sleep was found to be just as or maybe more dangerous than drinking alcohol.

I got a DWI after blowing a .078. Cost me a bunch of money for the cop to go on the stand say I passed all of the field tests. I blew .081 when I got to the station. Lawyer very easily argued since I consumed the alcohol 10 minutes prior to the stop the alcohol hadn't entered my system yet and at the time of the stop I was not driving under the influence. Case dismissed, $6,000 wasted. I drank one beer and one shot. Don't mess around with drinking and driving, not worth it.

NC DWI law is two pronged.

1st prong is appreciable impairment. If I conduct standardized field sobriety tests and I can articulate that you are impaired I dont need a BAC to arrest you. An example is I see several indicators during SFST but instead of drinking you took a handful of opiates. You will blow 0.0 but you are still impaired.

The 2nd prong is the per se limit. If you are a professional alcoholic and have the shakes if you aren't at a .10 but are able to function at .10 you are guilty of DWI simply by driving over a .08 3ven if it you aren't actually impaired. You just have to be over .08.

I have had several of both over the years. Guys who blow 0 and are hammered and guys who blow .10 but ace SFST.

quote:

Originally posted by V-Tail:

quote:

Originally posted by cne32507:

Drift: I used to party with several ADAs and staff. The Pensacola PD put on a BrAC test for any DA employee that wanted to participate: they drank two mixed drinks at a popular downtown bar, then walked to the nearby HQ and were tested. Several girls participated because the drinks were free. Nearly all tested over 0.10.

Kind of a similar thing, I used to work for a flight training outfit that specialized in instrument training. Some of the instructors would gather for pizza and beer at a nearby place, after work.

One day we get the bright idea of seeing how much beer it would take to render a pilot incapable of flying precisely (answer: not very much at all!).

We shared a few pitchers of beer along with our pizza, then walked back to our training facility and ran some scenarios in the simulators. Piss poor performance, even from those who had just had a couple of glasses of beer.

Very soon after I got my license I participated in a study a psychologist I had written some software for was doing. Fly a pattern in his Franca sim, have some drinks, fly it again. I had very little instrument experience (probably just the minimum for the private license) and the most recent was flying a Cub, just about as far from instrument anything as you can get. Even after a warm up before the sober pattern, I still was over controlling and getting fixated rather than keeping a decent scan going. I did much better after the drinks. I can’t imagine doing it in an airplane, and I’ve got to imagine the results would be much more in line with expectations now.

I’m addition to Apphunters post, in NC there is a charge for driving after consuming...that can be charged for those who blow below the per se of .08 BAC.

In Texas the max BAC if carrying is 0.0.

This message has been edited. Last edited by: George43,

.08 is just considered prima facie evidence of DUI. You can be convicted of DUI under that .08 level based on the other factors, erratic driving, etc.