(1) A blood-alcohol (or breath-alcohol) reading of .08 or higher;
(2) Defendant's normal faculties were impaired.
Obviously, a breath reading is the easiest way to prove DUI, providing
the breath machine was working properly and there are no procedural defects
that may win the case regardless of the breath test result.
And clearly refusing the breath test still permits prosecutors to proceed
on the theory that you were impaired, but just decided not to blow.
But even if you blow and the result is below a .08, prosecutors may still
proceed under the same theory as a refusal. The prosecutors will rely
on officer testimony and observations to establish that you were impaired,
despite the breath reading.
Impairment is a fluid concept. Some people may display signs of impairment
after one or two drinks, which may correspond to a breath-alcohol reading
of, say, .04.
Impairment can mean defects in motor skills. It can mean blurred vision,
slurred speech, and poor balance. Driving is an activity that requires
good motor skills. If a police officer believes that you cannot safely
operate a car, and suspects that you have been drinking or using drugs,
you can still be arrested and charged with DUI even if you blow below a .08.
Now I just mentioned something else. Drugs. Yes, of course you can get
a DUI for driving while under the influence of drugs, such as cocaine
or marijuana. You can also get a DUI for driving under the influence of
prescription drugs, such as oxycodone (OxyContin) or hydrocodone (Vicodin).
Even if you have a valid prescription, you can still get a DUI if the
medication impairs your driving.
If the police believe that you are on drugs, they may have a DRE (Drug
Recognition Expert) assess your appearance and behavior. Sometimes, a
DRE can tell (supposedly) that you are high on drugs just by looking at
your pupils. Like all expert witnesses, a DRE's credentials are subject
to some good cross-examination. If the DRE is 23-years old, has no advanced
degrees but took an 8-hour class in drug recognition, of course he or
she is going to be a weak expert.
But police sometimes don't look for the truth. They look for what supports
their presumption. If they presume you are high, they will look to support
it rather than refute it.
Drugs can also be detected through a urine test or a blood test. You may
refuse these tests just as you can refuse a breath test. If you have a
prior license suspension for refusal, you cannot refuse without being
charged with a misdemeanor.
If drugs are detected in your system, it can be argued that the drugs are
still there from a previous day's usage. For instance, if you smoke
marijuana, scientific evidence shows that the active ingredient, THC,
remains in your system for up to 30 days. So if you smoke pot on October
1, 2010, and are pulled over for DUI on October 26, 2010; it is possible
that you may still have some THC in your blood.
I practice
criminal defense in Miami-Dade County. As a
DUI attorney, I see all types of cases, from high breath readings to refusals to everything
in between.
If you need a DUI attorney, call me today. Remember to retain your DUI
attorney within 10 days of arrest so that your
DUI administrative hearing can be set. It may save your driving privilege.