Interviewer: When people come to you, what’s the most common theme on why they were arrested for DUI? Do most of them say, “I didn’t do anything wrong,” or do they say, “I only had a few beers?” What do you hear most often?
Most People Do Not Realize How Much Alcohol Will Result in an Over-the-Limit Blood Alcohol Content
Court: Among DUI attorneys, it’s kind of a running joke that we hear, “I had two beers.” That’s what everybody tells you when he or she comes in. Honestly, I think most of the time that’s probably not too far from the truth. People are a little bit reluctant to admit that they drank a lot when they did. But, the prevailing theme I see is that people don’t realize how easy it is for you to get over that 0.08 BAC level. You really could reach that level with two or three beers.
Especially in Utah, things are a little strange with our alcohol laws because you have different kinds of beer. Some beer is the hard liquor store beer that has high-alcohol content. Then there’s the grocery store beer that has lower alcohol content. Then, of course you have the hard liquor and wine, so people can sometimes not realize that maybe at home they drink the grocery store beer. They go out to a bar and they have the regular liquor store beer, and they’re drinking a lot more than they think they are. They’re consuming more alcohol than they realize.
A lot of times I’ll see somebody that had just two or three beers or maybe an ounce or two or hard liquor, and it just put them over the edge, so they’re driving and they didn’t realize what kind of blood alcohol content they had. It’s relatively easy to be over 0.08.
It’s also easy to just be on the borderline and a lot of times the Breathalyzer test is not as accurate as people might think that it is. Maybe you did have two beers. Maybe the Breathalyzer says that you’re over 0.08 but maybe you really weren’t.
I don’t typically encounter people who didn’t drink at all, and they just get a DUI. But you do see cases where somebody didn’t have very much alcohol and somehow ended up testing above the 0.08 or getting a DUI because they failed a field sobriety test.
Will You Still Be Charged With a DUI if Your BAC Is Below the Legal Limit?
Interviewer: What happens if someone registers below a 0.08? Is there a different charge or are they just let free?
Court: It’s the same charge. What happens is before you actually take the Breathalyzer test the officer has arrested you for DUI. They have to arrest you in order to give you the test.
Once you take the test, maybe they think you’re impaired because you’re not doing well on the field sobriety test and they’ve see whatever clues to make them think you’re impaired.
They arrest you, and if you take the test and you blow a 0.0 or a 0.02 or a really low BAC, you can still be charged with a DUI. What happens is the officer would have to prove in court that you were too impaired to drive a vehicle, despite the fact that your blood alcohol content wasn’t above the 0.08 level. If they can convince a jury that you were impaired, then you can still get a DUI.
Sometimes, those kinds of cases don’t end up getting charged as DUI because the prosecutor will look at the case and say, “Well, the blood alcohol level was only 0.03, so it would be really difficult for us to prove that this person was impaired,” and they’ll just opt to not charge you. On the other hand, sometimes they do get charged if the level is 0.06 or 0.07 or something closer to 0.08. That’s another thing: sometimes you can get a DUI without even being over that 0.08 level.
Are Cases Where Your BAC Is Below the Legal Limit Easier to Defend?
Interviewer: Are those cases more defensible than those that are 0.08 and above?
Court: It’s much easier to defend those cases because the prosecution really has the burden to prove that you were impaired. They have to really convince the jury that this person was weaving all over the place, causing a danger to other drivers.
Quite often, with those kinds of cases, they’ll try to argue that there might have been some other kind of impairment, like they were mixing marijuana and alcohol, or they might not have been drinking alcohol but they used some prescription drug that wasn’t tested properly for whatever reason. But they’re still trying to say that you were impaired. But it is much, much easier to defend those kinds of cases.