Imagine you are out with good friends for dinner. During dinner you have a great time sharing stories and sharing some wine. You, like your friends, try to act responsibly and abide by your “two drinks only” rule. In fact, you only drink two glasses of white wine. Before leaving the restaurant, one of your friends breaks out the latest and greatest gadget for breath testing. Your friend had seen the gadget online and wanted to see how it worked. Being curious, but also confident that you are well below a .08, you volunteer to take a test. As expected, the device reports a number below .08.
At below .08, should you drive home?
Confident that you were below a .08, you could hop in your car and drive home knowing that you were not violating Virginia’s drinking and driving laws, right? Not exactly. How about if you were stopped by an officer and blew below a .08 on the roadside test? If so, the officer must let you go, right? Not exactly. How about if you were arrested and taken to a police station where you blew below a .08 on the evidentiary breath test, surely you must be released without any charges against you, right? Not exactly. Does it matter how much below .08 that you blew on any of those breath tests? Possibly, but it never guarantees that you will not be arrested and prosecuted for DUI / DWI. Bottom line, any time you hop into a car after consuming any amount of alcohol, you risk the possibility of arrest and prosecution.
I’m confused, how could I possibly be arrested, prosecuted or convicted if I blew below a .08?
People are 100% correct when they say that driving with a blood alcohol concentration (BAC) of .08 or more is illegal. However, many of those same people think they are perfectly safe and will not be arrested for a Virginia DUI / DWI if they are driving with a BAC less than .08. They are wrong. In fact, Virginia DUI / DWI laws make it illegal to drive while impaired by alcohol – even if a person’s BAC is below .08. The bottom line is, it is illegal to drive with a BAC of .08 or more, but it is also illegal to drive if you are impaired by alcohol – regardless of the BAC at the time.
The Message Received & The Message Missed
Over the years, public service commercials pounded home the point that .08 is the legal limit. As a result, it is now almost universally understood that driving with a BAC at or above a .08 is illegal. In that way, the public service announcements succeeded. Unfortunately, much of the public mistakenly believes the converse to be true: as long I’m less than .08 - I’m great. In that way, the public service message failed miserably. In fact, the public service message did a major disservice to many unsuspecting, well intentioned drivers who thought they were perfectly legal to drive home, but instead ended up arrested for a Virginia DUI / DWI, thrown in jail, convicted, and labeled a criminal.
Does it Matter How Far I Am Below .08?
Yes, at least a little. At BAC levels of .05 or less the scale is tipped in favor of the accused, but that doesn't mean that you can’t be arrested – and convicted of a Virginia DUI / DWI. In fact, as stated above - if you are driving while impaired you can be convicted of a Virginia DUI / DWI no matter what your BAC is.
Don’t Go it Alone
If you or a friend has unwittingly tempted fate at below an .08, don't make the mistake of trying to go it alone without hiring a lawyer. In those cases below an .08, the right attorney can make all of the difference. We are experienced Virginia DUI defense attorneys who will aggressively fight to achieve the best possible result.