Most people know that .08 Blood Alcohol Content (BAC) is the cut off level above which a person can be charged with a DWI. Not everyone knows that you can still be convicted if your BAC is below .08.
To convict on a DWI, the State must show that a person has lost the normal use of faculties due to the ingestion of a substance. That can be any substance, whether it is legal, illegal, or even prescribed. If the a blood test is run and comes back below .08, the State immediately sends the sample to be drug tested. A DWI can be based on the presence of any substance. If marijuana is found, the prosecution will definitely argue that the person was high, even though marijuana will stay in your system long after all effects have worn off.
When the blood test comes back below .08, it is my experience that a dismissal is likely, even though it doesn’t happen right away. Many clients expect that dismissal should be automatic, but that is not true in all cases. Either way, the defense position is strengthened when the test comes back below .08. A good attorney will use this leverage to earn a dismissal, assuming the blood test comes back negative for drugs.
If the sample shows a BAC of over .08 by a small amount, it can be a good idea to have the sample tested by another lab. Variations in equipment mean that no two tests are exactly alike. Often, a reading of .09 or .1 can be off by enough to make a significant difference. Even if the second test comes back above .08, it is important to note that BAC is continually fluctuating. It can rise by a significant amount hours after drinking. Just because BAC is above .08 at the time of the test does not mean that it was above .08 when the defendant was riving.
In close cases, contextual factors become extremely important. How ling after driving was the test taken? It is on the prosecutors to show a temporal link between driving and intoxication. How did the defendant appear in the dash cam video? Are they swaying, slurring their words or do they seem ok?
A DWI case is never so simple that a test above .08 means guilty and below means innocent. That is why it is essential to have an experienced criminal defense attorney to argue your side. Call 512-677-5003 for a free consultation.