Jacksonville Criminal Defense Attorney Blog
Have you been arrested for driving under the influence (DUI) in Florida even though your breath alcohol content (BAC) was less than 0.08? If so, you’re probably wondering how you could still be arrested, given the “legal limit” of 0.08. The answer is below.
Under Florida law, the State has to prove one of two things in your case to convict you of DUI. First, the State must prove that while you were driving or in actual physical control of a vehicle you were under the influence of alcohol or drugs to the extent your “normal faculties” were impaired. Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.
Alternatively, to convict you of DUI the State must prove while you were driving or in actual physical control of a vehicle you had a breath alcohol level of 0.08 or higher. A BAC of 0.08 or higher results in a conclusive presumption you were under the influence of alcohol to the extent your normal faculties were impaired. That is the primary reason most attorneys recommend not consenting to a breath test if there is any question about your BAC.
So if you blew less than 0.08, how can you still be subject to a charge of DUI? It’s because of certain presumptions about BAC ranges and how juries can consider other evidence of impairment in addition to your BAC.
Thus, under Florida law, if your BAC was greater than 0.05 but less than 0.08, there is no presumption either way as to whether you were or were not under the influence of alcohol to the extent your normal faculties were impaired. In that case, the law provides the jury may consider not only your BAC, but other evidence as well, such as your driving pattern, speech characteristics, appearance, demeanor, gait, balance and any other factors that might bear on whether your normal faculties were impaired.
So, despite common belief, just because your BAC may have been less than 0.08 doesn’t mean you can’t be convicted of DUI. That’s because if your BAC was greater than 0.05 but less than 0.08 there is no presumption either way about your impairment and the jury is free to consider other evidence in determining your guilt or innocence.
Finally, if your BAC was 0.05 or less, the jury will be instructed to presume you were not under the influence of alcohol to the extent your normal faculties were impaired. That sounds like you should be acquitted, doesn’t it? Well, not necessarily.
Rather, you could still lose your case with a BAC of 0.05 or less. That is because the jury would be further instructed that although with a BAC of 0.05 or less they are to presume you were not under the influence of alcohol to the extent your normal faculties were impaired, this presumption can be overcome by other evidence. So, just as with a BAC of greater than 0.05 but less than 0.08, if your BAC was less than 0.05, the jury may consider not only your BAC, but other evidence as well, such as your driving pattern, speech characteristics, appearance, demeanor, gait, balance and any other factors that might bear on whether your normal faculties were impaired. The existence of such evidence in your case can result in you losing your presumption of not being impaired and you instead being found guilty of DUI.
In summary, you can still be convicted of DUI even though your BAC was less than 0.08. It all comes down to a determination of whether you were under the influence of alcohol to the extent your normal faculties were impaired. And whether your normal faculties were impaired is determined by a factual inquiry into whether your ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives was diminished in any way, irrespective of your breath alcohol level.
If you’ve been arrested for DUI even though your breath alcohol level was less than 0.08, you should consult with a Jacksonville criminal defense lawyer with knowledge about, and experience with, the nuances of legal presumptions arising from various breath alcohol levels and the impact of those presumptions on DUI cases. If you do, you will have the best chance of getting your DUI charges reduced or dropped. Call me for a free case strategy session to discuss how I can best help you with your DUI case in Jacksonville, Fernandina Beach, Yulee, Macclenny, Green Cove Springs, Middleburg, St. Augustine or surrounding areas.