In DUI law, we all have a pretty solid image of someone getting arrested for a DUI in our heads – a cop administering a breathalyzer test on the side of the road, and bringing them in if they blow over .08% Blood Alcohol Content. This can lead to a misconception where some people believe that cops can only charge you with a DUI if you blow over .08% BAC. While a BAC over .08% will almost certainly lead to being charged, cops have discretion to bring charges against people who blow lower than than a .08 BAC.
The Illinois DUI statute reads: “A person shall not drive or be in actual physical control of any vehicle within this State while: (1) the alcohol concentration in the person's blood or breath is 0.08 or more based on the definition of blood and breath units in Section 11-501.2; [or] (2) under the influence of alcohol.” The .08 number acts as a presumption of intoxication; anyone driving who blows .08 is presumed by the state to be intoxicated. There are plenty of ways to fight these charges discussed in other entries on this blog. Most people, however, would be surprised to find that the broad “under the influence of alcohol” is meant to allow the officer to charge drivers who do not blow .08%, whether because they were not tested or because they blew a lower number less than a .08 BAC.
The American legal system is set up so that we do not entirely trust the opinions of police officers; the charges they bring need to be proven in court before you can be found guilty. The most direct way to fight charges under this provision is to challenge the officer's judgement. Were they qualified to say that you were intoxicated? Did any other witnesses believe that you were intoxicated? Police officers do not have perfect judgement, and a solid defense is to question why they believed the defendant was drunk. This is why we attack the field sobriety tests – often the officers fail you but the judge will think that you look just fine. This can lead to a successful outcome of your DUI case.
As you can see, there is much more subjectivity involved and the prosecution will have a much harder time getting over the constitutional presumption of innocence when there is no breathalyzer score. Still, without solid representation you could find yourself stuck with the exact same penalties as someone who blew over .08%. If you've been charged with a DUI but never blew over .08, you should seek experienced legal help at at the DUI defense firm of John. W. Callahan ltd.
Posted by DUI lawyer John W Callahan