Will I Be Released If I Blow Below .08?

If you are stopped by a police officer and are investigated for DWI, will you be released if you blow below .08?  While it may depend on the officer, generally the answer is no.  Sometimes an officer will tell a person that if they blow below a certain number on a Portable Breath Test, he or she will let them go.  This is interesting, because the number that a Portable Breath Test reports is not even admissible in court.  Nevertheless, an officer is not limited by the number that they get on the Portable Breath Test.  It is the number that is blown back at the station that really counts, so if an officer gets a number below .08 at the street, they are still justified in getting a reading at the station.  Once they get to the station, if the person blows below .08, the prosecution can argue that at the street the blood alcohol content was higher.  They can argue the blood alcohol was processed by the body, and consequently the blood alcohol dropped over time.  Therefore, the blood alcohol content was over the legal limit while the person was driving.

In addition, a blood alcohol reading of .08 or more is not required for a person to be charged with, or even convicted of, DWI.  That is because the statute also prohibits driving a vehicle on a road or in a public vehicular area when a person is materially and appreciably impaired.  If the prosecution can show that the person was impaired in such a way that they ought not be driving, then it does not matter that the person  provided a sample that showed that they were below .08.  That being said, it is harder for the prosecution to prove that a person was impaired unless their performance on the Standardized Field Sobriety Tests was terrible, and their behavior or driving was erratic.  These types of cases are different than cases in which a blood alcohol content number was collected, because then that number has to be addressed by the defense

So while you have a blood alcohol content of less than .08, you may still be forced to fight a DWI charge.  This comes as a shock to many people, but it happens all the time.  So if you blow below .08, don’t be surprised if an officer still asks you to put your hands behind your back.