Can I Get Charged with Dui When I’m Below the ‘Legal Limit’?


We regularly meet clients who have been charged with DUI despite having provided a BAC test that came back below .08. They then ask the very understandable question, “Can they charge me with DUI when I was below the legal limit?” The answer is yes … sometimes.

How can a person be DUI under .08?

  • First, let’s get this out of the way: .08 is not the “legal limit”! There is no such thing as a legal amount of alcohol to have in the system and drive a car; well, except zero. The legal standard to get charged with DUI is driving a car while “under the influence of or affected by” alcohol, marijuana, or any drug.
  • A person is “under the influence of or affected by” alcohol, marijuana or other drugs if the person's ability to drive a motor vehicle is lessened in “any appreciable degree”.
  • “Appreciable” is defined as “anything you can notice, appreciate, or perceive”.
  • So, yeah. If a driver’s ability to drive is affected by alcohol in any noticeable way, that driver is at risk of being arrested for DUI.

So why does the .08 matter at all?

  • .08[1] is a per se limit for alcohol (5 nanograms[2] is the per se limit for THC). What that means is that at that level a driver is considered unlawful to be driving. Impaired, affected, drunk; none of it matters at .08. At .08 we are per se illegal to drive regardless of how safely we were, or thought we were, driving.
  • It’s only when the test comes back below that per se level that the court will fall back on the “affected by” standard.

So if I’m under .08, what’s to say I was “under the influence”?

  • The court is going to look at observations that the officer makes about the driver other than the BAC. That’s why they ask the questions they ask and have you perform the tests they do; to gather other, non-BAC evidence to support a conviction for DUI.
  • One: Bad driving. Poor driving is definitely the most powerful piece of evidence a prosecutor has in a < .08 DUI case. If the driver is swerving, running traffic control devices, or otherwise demonstrating impaired driving, then a prosecutor can argue a simple connection between the alcohol in the system and the imperfect driving. If the jury believes that the alcohol in the system affected the ability to drive (and follow the rules of the road) to an appreciable degree, then they can convict the driver of DUI.
  • Two: Roadside “sobriety tests”. These are designed to determine whether a person’s regular physical dexterity and coordination are impaired. They are largely divided attention tests; meaning that they force the subject to concentrate on two unrelated tasks at one time. This ability is one of the first things alcohol undermines. The standard tests are the walk and turn, one leg stand, and gaze nystagmus.
  • Obviously none of these tests directly test a person’s ability to drive a car; you will almost never need to stand on one leg to operate a motor vehicle. However if the performance on the tests is less than perfect, then a prosecutor can argue that the driver’s coordination or ability to process information was impaired. And those are all things that we do need to drive safely.
  • Most defense lawyers, by the way, will tell you not to take these tests. By the time the officer asks you to take them, he or she already suspects you of being under the influence. That certainly must influence the way that they hear what you say and see what you do. You are probably going to exhibit at least a couple of ‘clues’ of impairment in the test, whether from actual impairment, nerves, or just the subjective nature of scoring the tests.
    • Remember: If BAC is over .08, then you are getting charged no matter how you did on the tests. But if you come back under .08 but performed poorly on the tests, you may get charged with DUI anyway. So in most circumstances the tests cannot help you, but can hurt you.
    • It is difficult to tell an authority figure you will not do what they are asking you do to. Try this: “I want to cooperate, but I have a friend who is a lawyer who told me never to take these tests. So if you are investigating me I would like to talk to a lawyer before we go any further, and I am going to follow his advice and not take any voluntary tests.”
  • Three: Your own words. You hear it on TV all the time: “You have the right to remain silent. Anything you say can and will be used against you in a court of law.” They mean it. From the seemingly harmless “I only had two beers” to the terrible (and all too common) “I couldn’t even do this test if I was sober”, be aware that basically everything you say to a police officer is fair game. Also, the officer is sometimes going to write the report hours later, so your statements are subject to misquoting. Remember, he is looking for you to incriminate yourself; damaging statements you make may be more significant to him, and therefore more likely to make their way in to police report than harmless comments. The less said, the better. The sooner you say you want to talk to a lawyer, the better.

So no, .08 is not a “legal limit”, it’s a “per se” limit. And it’s only a starting point to determine how to defend yourself against a DUI charge.


[1] (grams of alcohol per 210 liters of a person's breath)

[2] (per liter of whole blood)

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