Why BAC under .08 Does Not Matter

Authored by Wendy Witt, Esq.

Can I Be Convicted of DUI if My BAC is Less Than .08%

It might surprise you, but yes. You can be convicted of drunk driving even if your blood alcohol content (BAC) is less than .08%. Having a .08% BAC makes it easier for the district attorney or other prosecutor to prove your guilt, but a .08% level is NOT required for a DUI conviction.

And, here's why a .08% BAC is not necessary:

  • If you are driving unsafely and have alcohol in your system, you may be guilty of drunk driving - at any BAC level.
  • State laws typically limit the BAC limit for under-21 drivers to 0.0% or .02%.
  • State laws often limit the BAC limit for commercial drivers (while driving a commercial vehicle, including a school bus) to .04%. Some states have an even lower limit such as .02%.
  • The police officer will charge you with DUI, DWI, or OUI (depending on the state), if you fail the field sobriety test - perhaps, even without your BAC being measured.

Being Arrested for Drunk Driving May Surprise You

Many folks enjoy a few bottles of beer or a drink, while watching the game or at happy hour, and not realize that their driving has been impaired or that they've reached the legal .08% limit.

  • Even one glass of wine at a family picnic can lead to impaired driving. It's been found that impairment starts at just .02%.
  • Women can reach the .08% limit with just two drinks.
  • Men can reach the .08% limit with just three drinks.

Is BAC Testing Always Conclusive?

Surprising to most folks, BAC testing is not always accurate. The equipment can be faulty, mistakes in administration can be made, and results can be reported incorrectly.

In addition, maybe the police officer didn't even follow proper stop procedures and your BAC evidence will be thrown out.

If you have been arrested for DUI and your BAC measures in the "guilty" range of .08% or above (for adult regular drivers), don't count yourself out. A mistake may have been made by the police officer, BAC measuring equipment, or by the court.

But, I Only Had One Drink!

Your driving can be impaired with just one drink, especially if you haven't eaten; however, maybe something else has gone wrong, causing the BAC test results to be inaccurate.

For example:

  • If dental work blocks food in between your death, BAC results can be altered as the food decays.
  • If you've taken medication for indigestion, acid reflux, or GRED (Gastroeophageal Reflux Disease), BAC results may be inaccurate.
  • If you've recently used mouthwash, mouth pray, or cough and cold medications, your BAC test results may not be right.
  • You may have a rising BAC, meaning that when you were driving your BAC hadn't yet reached the prohibited level.

Related topics

More articles about dui

  • DUI Law

    From arraignment to sentencing - learn about your options for dealing with your DUI or DWI charge.

  • DUI Glossary

    Understanding DUI terms police, prosecutors and courts use can help your defense.

  • Defenses to Drunk Driving

    Carefully review our in-depth guide to your DUI defense - we break down the most successful defenses.

  • What You Tell Your DUI Defense Lawyer

    Disclose absolutely everything to your attorney and if there is any doubt, disclose that too - here’s why.

  • Why You Must Hire a DUI Attorney

    Just one DUI conviction can cost you tens of thousands of dollars.

  • Penalties for a DUI Conviction

    Penalties typically depend on three factors - where you live, your criminal history and other mitigating or aggravating circumstances. Many offenders face more than just fines if convicted.

Get informed

Be prepared to work with an attorney with our free bankruptcy guides.

Browse comprehensive profiles from top licensed attorneys and law firms.