Most Driving Under the Influence cases involve driving within two hours of the driver having a Blood Alcohol Content (BAC) equal to or over the legal limit of .08g/210ml, as measured by a test of the driver's breath or blood.
However, there are several scenarios under which a person may face prosecution for DUI that doesn't involve a breath test or even alcohol.
The following are examples of the different ways a DUI case can be prosecuted – and defended.
Driving Under the Influence of Liquor
"Per Se" vs. "Affected By"
If you are charged with DUI under the "per se" prong, this means the State must only prove that your Blood Alcohol Content (BAC) was .08 or higher within two hours of driving. BAC is usually determined by a breath test, but under certain circumstances may also result from a blood test. The higher the BAC, the stiffer the potential consequences. If your BAC is .15 or higher, the minimum penalties for jail time, fines and license suspension increase, especially when there are prior offenses within 7 years.
Per se cases are challenging to defend at trial, because a jury must convict if they find that the breath test was over .08 and "accurate and reliable," regardless of other evidence. If you are charged with DUI that involved a BAC over .08, It is important that you consult with a DUI attorney with knowledge and familiarity with the BAC Datamaster and Datamaster CDM (and coming soon, the Draeger Alcosensor) system and procedures, how they operate, and how to challenge them.
"Affected by" means your ability to drive was "affected by" the alcohol or drugs in your system to an "appreciable" degree. A person can be found guilty of DUI even when there is no evidentiary breath test available - for instance, if you refused the breath test. At trial, an "affected by" case that does not involve a breath test is generally easier to defend, as most of the evidence comes down to the officer's subjective opinion, which may be contradicted by other evidence — witnesses, dash-cam recordings, or even the testimony of the accused.
BAC Over .15
If you are arrested for DUI, and your breath or blood test result is over .15, you may be subject to enhanced penalties including additional jail time, fines, license suspension, and Ignition Interlock Device (IID) requirements. The mandatory minimum for a first offense is 48 hours in jail. For a second offense within 7 years, that increases to 45 days in jail and 90 days of Electronic Home Monitoring (EHM), commonly referred to as "house arrest." Repeat offenders face even more jail time, suspension and IID requirement – up to 10 years for the latter, and possibly losing the privilege to drive altogether for 7 years!
Driving Under the Influence of Marijuana
For years, Driving Under the Influence of Marijuana had been categorized under the "affected by" prong. Due to the passage of I-502 in 2012, however, a driver with 5 ng/ml or greater THC in his system (based on a test of the person's blood) is now "per se" legally impaired by statute, similar to one with .08 blood alcohol or over in his system. And like alcohol, a driver can be charged with DUI Marijuana even if it turns out he had less than 5 ng/ml of THC.
A DUI attorney fighting a DUI Marijuana charge should be up to date with this very new and changing body of law, as well as the admissibility standards for blood draw DUI cases.
Driving Under the Influence of Prescription and/or Illegal Drugs
Many people think that they cannot be arrested for or charged with DUI if they are impaired due to prescription drugs as long as they have a valid prescription. You can, even if you took only the "prescribed dose." Following a DUI arrest for drugs (whether legal or illegal), the arresting officer will often call for a "Drug Recognition Expert," or "DRE," to conduct an examination of the subject to determine what classification of drugs, if any, he is impaired by. Usually (but not always), as part of the DRE investigation, the officer will seek a search warrant to obtain a blood sample to confirm the DRE's opinion.
A person is charged with DUI under the "Refusal" prong either because they verbally refused to submit to the breath test, or because the officer determined by the person's conduct that they were refusing. An example would be where the person appeared to the officer to be intentionally blowing incorrectly. This is of course subjective and comes down to many factors, including the officer's temperament at the time and how it may have colored his point of view.
The Department of Licensing takes a dim view of refusals. DOL will suspend one's license for 2 years following a refusal, vs. 90 days for a breath test at or over .08. Prosecutors often view refusals more harshly than even breath tests over .15 – especially where there are other aggravating factors such as passengers (especially those under 16), collisions, or hostility toward the officer.
As a result, it is usually (but not always) best to submit to the breath test. On the other hand, if it is a second offense within 7 years, and there was a suspension from the first offense, then it may be advisable to refuse the BAC because the result will be a two year suspension either way.
There are other reasons why it might be better to refuse the breath test. It is always more difficult for a prosecutor to obtain a conviction without a breath test ticket, even where the person refused. If at trial the jury finds that the breath test result was both over the legal limit and reliable, then by law they must convict. Refusal evidence, on the other hand, is completely subjective.
Back when I was a DUI prosecutor, when I obtained a conviction on a refusal case jurors would often tell me that they didn't consider the fact that the person refused the breath test too much. After all, the cop told the person he had the right to refuse, didn't he?
It's important, however, to know that following a refusal, the arresting officer can still seek a search warrant with which he can legally take your blood whether you like it or not. This doesn't happen as often as mere refusal, but seems to be on the increase the last few years.