Challenging A DUI        The Police Encounter      DUI Penalties        Impairment        Mistakes To Avoid

Drinking alcohol affects your Blood Alcohol Concentration (BAC). If a test result is .05% but under .07%, there is no presumption of impairment but it is a factor which with the officer’s observations can support a conviction. A result of .07% but under .08% is prima facie evidence of impairment. .08% and above is per se evidence of Driving Under the Influence. The charts below show the BAC zones for various numbers of drinks and time periods. Remember: “One drink” is a 1 1/2-ounce shot of 80-proof liquor (even if mixed with non-alcoholic drinks), a 5-ounce glass of 12% wine, or a 12-ounce glass of 5% beer. These “one drink” equivalents change if you are drinking ale, malt liquors, fortified wines, port, brandy, different proof liquor, or if you are drinking on an empty stomach, are tired, sick, upset, or have taken medicines or drugs. HOW TO USE THESE CHARTS: Find your weight chart. Then, look for the total number of drinks you have had and compare that to the time shown. If your BAC level is in the grey zone, your chances of having an accident are 5 times higher than if you had no drinks, and 25 times higher if your BAC level falls in the black zone.

Technical note: These charts are not legal evidence of actual BAC. Although it is possible for anyone to exceed the designated limits, the charts have been constructed so that fewer than 5 persons in 100 will exceed these limits when drinking the stated amounts on an empty stomach. Actual values can vary by body type, sex, health status, and other factors.


(.01%–.04%) Possible DUI—Definitely unlawful if under 21 years old

Likely DUI—Definitely unlawful if under 21 years old

Up) Definitely DUI *

There are many potential defenses to a DUI charge given the complexities of the alleged offense:

Probable Cause for the stop- The evidence will be suppressed if the officer did not have legal cause to stop, detain and arrest the driver.

MIRANDA WARNINGS – Incriminating statements may be suppressed if warnings were not given at the appropriate time.

Implied consent warnings – If the officer did not advise you of the consequences of taking or refusing to take a chemical test this may invalidate an MVA license suspension based upon the taking of or a refusal to provide a breath/blood sample.

CHEMICAL TEST VALIDITY – There are regulations for blood-alcohol testing . The prosecution must prove that the blood or breath test complied with state requirements as to calibration, maintenance, etc.

“Rising BAC defense”? – It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING — not at the time of being TESTED. Since it takes between 30 minutes and 3 hours for alcohol to be absorbed into the system, an individual’s BAC may continue to rise for some time after he is stopped and arrested. Commonly, it is an hour or more after the stop when the blood or breath test is given to the suspect. Assume that the result is .10%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .06%. In other words, the test result shows a blood-alcohol concentration above the legal limit — but his actual BAC AT THE TIME OF DRIVING was below.

“Mouth alcohol” vs. “Breath alcohol” ? “Mouth alcohol” refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact. Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine’s reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic “reflux” condition from gastric distress or a hiatal hernia can cause elevated BAC readings.

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