Arrested for DUI and still under the legal limit?

Question

This is just because I'm curious if others have dealt with this. A co-worker of mine was arrested last week at a sobriety checkpoint for DUI. They smelled beer on him, they pulled him out and put him through the show. But here's the thing... he had two beers only. I know, because I was there with him when he consumed them before he left the bar. It was a Friday, post work, happy hour thing, he could not have been there more than 30 minutes. When I asked him about the field check (walking the straight line, touching your nose, etc.) he says there was no problem. The problem came when he blew a .03 on the breathalyzer. My first response was, well why were you arrested? You were well under the legal limit, why were you arrested? That's what he said too. He still looked stunned. He was arrested for operating a vehicle under the influence. Not INTOXICATED, but under the influence of alcohol.

Does this sound right to you? Can they really do that?

Answer 1

Good question. I don't know what state you are from, but I practice in California, so I know about California law. California Vehicle Code section 23152 has a subsection (a) and a subsection (b). Under (b), it says that anyone over a blood alcohol level of 0.08 while driving is guilty of a DUI. Subsection (a) says that anyone who is intoxicated is guilty of a DUI while driving. District attorneys usually charge both subsections. What is the difference? What people don't know is that THERE IS NO LEGAL LIMIT. They think that as long as they are under 0.08, they are okay. WRONG!!! The DA can charge subsection (a), which can be brought even when they are under the legal limit.

Here is how it works. If you blow a 0.08 or above, you are presumed to be intoxicated. Thus, you can be convicted under (b) (and also (a)). If you blow under a 0.08, but are still intoxicated and the DA can prove that you are impaired, you can be convicted under (a) but not (b).

The level of 0.08 is a presumption of impairment. All the DA has to prove is that you were driving and you blew over a 0.08. That's very easy.

However, it's not so easy to prove that you were actually impaired if you blow under the 0.08 presumption. But it can be done and is done on a regular basis. The thing is that some people are impaired when they are under a 0.08 and some people aren't impaired. It's an individual thing depending on a lot of biological factors individual to each person. And it's just not as easy for the DA to prove impairment because of these individual factors.

But people don't realize that the 0.08 level is just where the presumption changes and it makes it easier for the DA to prove intoxication.

A really good defense attorney can take on the science of breathalyzers if you blow over a 0.08. But more attorneys can attack the cop's finding of intoxication if you blow below a 0.08, so it's always better to be under a 0.08 than above it. Still, you can get convicted of a DUI even if below 0.08.

Is there a difference between the punishment between subsection (a) and subsection (b)? Absolutely no difference. The punishment is exactly the same.

Incidentally, not all "sobriety checkpoints" are legal. Cops need to specify that such check points are for "safety" purposes and not to just catch drunken drivers. A while ago a cop caught a DUI driver that a friend of mine was defending. The stupid cop wrote in his report that the driver was caught at a "DUI Checkpoint." Opps. The cop screwed that up. The defendant's lawyer will use the cops own words to kick out the evidence obtained at the checkpoint, because these checkpoints can't be strickly to get people for DUIs. So, did the cops in your buddy's case follow the rules this time?

Answer 2

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Answer 3

Here's the thing with DUI's. One, this stop occured because he was likely not controlling his vehicle very well. Swerving, driving too slow, too fast, or something.

Now, if you can pass every field test there is, and blow a .12, you are DUI, even if you can probably drive safely.

If you cannot pass the field tests, but only blow a .06, you are still DUI. Some people handle alcohol differently than others.

Seems he could likely walk the line, blow a low number, but had already shown he was having trouble controlling his vehicle. Since he did blow .03, proving he had consumed alcohol, and likely was driving in the fashion typical ofa DUI, he was arrested.

It isn't an all or nothing game. You don't have to fail the field tests and blow over a certain number. You just have to fail at something. Sounds like your friend wasn't driving well, could walk the line, but blew positive for alcohol. In most cases, he will be arrested.

We do this for one reason. Even though, with an attorney, he will probably get off. The officers got him off the road that night, no one got hurt, himself included, and everyone makes it home. He just has to suffer the inconvenience of going to court on the matter.

Answer 4

Driving under the influence (DUI) and driving with a prohibited BAC (0.08) are 2 different charges. They could both be present, if a person is under the influence and is over a .08, but they don't have to both be present. Some people are impaired by less than .08, and some people can go above a .08 and still function.
If he got arrested, it's because the officer saw that he had consumed enough alcohol that he shouldn't be driving. Some people, like me, just can't handle alcohol.
Everyone, including the drunks who fail them, swears they pass all of their sobriety tests

Answer 5

While I am not an Officer and I differ to the great answers given by Citicop, Eric B, and Tatoo980927, I will mention one other thing.

While not applicable in your specific instance (Your friend was at a Bar and therefore likely of legal age to drink) this is another way that you can blow less than the legal limit and yet still get arrested.
In Texas if you are under 21 and blow ANY DETECTABLE AMOUNT of Alcohol, you can be arrested.

Answer 6

Absolutely, provided there is evidence of impairment. Performance on the field sobriety tests, observations of fine motor skills, balance, etc... can all be used to build a DUI/DWI case.

Personally, if I stopped someone who bombed the Field Sobriety Tests, and they only blew a .03, I'd be heading to the hospital with that person to have blood drawn to check for other substances. Odds are, usually the test reveals drugs in the system of the offender.

Answer 7

Hello, well that depends on the state law and how it is written and also case law regarding DUI in your state and area. But generally, there is usually a provision that you do not necessary have to be over the limit for a DUI charge but it could also be driving and/or smell of alcohol. Again, laws about DUI are very state dependent, so the best bet is to get a compentent defense attorney and fight it.

Answer 8

The legal limit for someone under 21, in the state of Ca., is 0.01. Thats it. Not 0.08, but 0.01. That is less than one beer in an hour time. Thats the brakes, don't drink and drive.

Answer 9

How old is your friend? If he is under 21 years of age, it is illegal to drink alchohol at all. My niece was arrested for the same thing at 17... hmmm...

Anyway, I'm sure it depends on the laws in your state/city/county, etc. Ask an attorney.

Answer 10

You can be arrested for just having a sip of any alcohol and drive. Your still considered under the influence.