DWI, DUI, BAC – when can you be arrested? What if you refuse the Breathalyzer? And other pressing questions
The one thing that people remember about blood alcohol content is it shouldn't be above 0.08 when you're driving.
They don't know what that 0.08 is measured in, but they know the number is 0.08! Through cultural osmosis, people have managed to learn that magical number.
Most of all, don't drink and drive if your blood alcohol content is above 0.08 grams per deciliter. (And remember, you can still be arrested for a BAC lower than 0.08% if your behavior is considered to be erratic by law enforcement.)
What is blood alcohol content (BAC), anyway?
Well, it's exactly what it says on the tin. It's the percentage of alcohol in your bloodstream.
BAC testing (also called blood alcohol concentration, blood ethanol concentration and blood alcohol levels) allows medical professionals and law enforcement to objectively estimate how much alcohol is present in your body.
Alcohol absorbs into the bloodstream through your stomach and small intestine in as little as 15 minutes. The higher your BAC, the greater your intoxication. Variables that can affect your BAC include weight, gender, age, food intake and water consumption.
Variables that affect your BAC include weight, gender, age, food intake and water consumption.
Here is what happens at increasing levels of blood alcohol content:
0.020: Light to moderate drinkers will begin to feel some effects of alcohol.
0.040: Most individuals will feel somewhat relaxed.
0.060: Mental judgment is relatively impaired.
0.080: (LEGAL INTOXICATION): Impairment of muscle coordination and driving skills.
0.100: Deterioration of reaction time.
0.120: Unless a person has developed tolerance, vomiting will usually occur.
0.150: (Equivalent to ½ pint of whiskey) An individual's balance is impaired.
0.150-0.25: Blackouts begin.
0.300: Most people lose consciousness.
0.400: Most people lose consciousness. Some die.
0.450: This is when breathing stops and a person has achieved drinking himself to death.
What about BAC and the law?
Blood alcohol content comes into play legally when a person has been pulled over by a law enforcement officer or detained in some manner under suspicion of intoxication. (This is called a “Terry Stop,” which is a short detention of a suspect so that police can investigate an inquiry.)
The police officer will ask that person to breathe into a device called a Breathalyzer, which measures breath alcohol content. From this, the officer will quickly be able to determine whether the person is intoxicated.
Breathalyzer test – your options
That person being tested has a couple options. He can decide to breathe into the device, at which point he will likely be arrested and arraigned for driving under the influence of alcohol.
He can also refuse to breathe into the device, which causes a host of other issues. If he was initially pulled over by this same officer, under the laws of implied consent, that individual should submit to the chemical test. Read on to learn why.
Implied consent laws
When all of us apply for driver's licenses, we sign a lot of papers that we don't read.
Among them is fine print stating that if we're pulled over by law enforcement, we agree to submit to chemical tests like Breathalyzers or roadside sobriety exams. It's “implied” that we will agree to these because we have the privilege of driving on the roads.
There are penalties if we don't submit to these exams: Many states have automatic suspensions of licenses for six months, impounding of vehicles or even jail time.
People think that taking a Breathalyzer test will be like admitting guilt, so they believe that choosing the implied consent violation option, however bad it is, is the lesser of two evils. Most of the time, that isn't the case. Refusing the Breathalyzer could be worse than failing it.
California and Vermont may sentence drivers to jail time for refusing chemical tests – called an implied consent violation – if the driver has previously been convicted of DUI. Three states – Nebraska, Minnesota, and Alaska – took this one step further: they may impose jail time for drivers refusing chemical testing for the first time.
Fines are expensive, not withstanding court costs and possibly increased insurance rates, the fine alone could reach $10,000. Some states require alcohol education program attendance for refusal of testing.
Testing blood alcohol content
Medical professionals can test BAC levels by breath, urine or blood. Breath testing is the easiest. Blood testing requires a trained professional and is time-consuming, though it is considered by far the most accurate; urinalysis is considered to be not as accurate as the blood testing and breath tests.
Blood testing is especially troublesome, even though it's the most accurate. People have a natural aversion to needles, and some individuals have bleeding disorders or infections that complicate the process. Law enforcement officers need to transport people to phlebotomists, who are generally at hospitals or clinics, and then wait for the results, which can take weeks or even months.
Breathalyzers are portable, compact and instantaneous with their results. While the argument can be made that blood is more accurate than breath (and indeed, that argument has been made in court many times), it's true that police need an instrument that can be used on the go.
Per se and zero tolerance laws
What about those people who have more than 0.08 g/dL in their bloodstreams and are caught by the Breathalyzer? All states have laws that deem any driver “per se intoxicated” with a BAC of 0.08 g/dL or higher. This means that the cops don't need to find any additional evidence of impairment. Even if that person has developed a tolerance and is functioning perfectly well at 0.08%, he will still be convicted of driving under the influence.
A driver could also be convicted if his BAC was less than 0.08 g/dL if a cop testified that he failed the roadside sobriety test. If his conduct was erratic or his eyes were bloodshot, the cop could deduce that this guy was three sheets to the wind and submit his testimony to that effect.
As for zero tolerance, if a driver is under the legal drinking age, these laws penalize anyone under the age of 21 who uses a vehicle with absolutely any alcohol in his or her system. These are meant to protect younger drivers and to keep them off the roads when they are engaging in reckless activity. This means that if his or her BAC is anything above 0.00%, that kid's parent will be receiving a phone call from the county police chief.
Enjuris tip: If you aren’t sure whether you can speak to an attorney before a chemical test, ask! Some states let you, some states don’t.
What if a drunk driver caused my accident?
Let's assume now that you did absolutely nothing to bring this situation upon yourself – you were just in the wrong place at the wrong time, and a drunk driver hit your car. What happens next?
The legal system is split into two parts: the civil side and the criminal side. The district attorney will pursue criminal charges against the drunk driver for whatever crime the state allows: operating under the influence, driving under the influence, operating a motor vehicle while intoxicated, what have you.
Each state has its own specific law, which the district attorney will pursue. You will have to participate in that case as a witness, but that is not where you will recover any damages. That is just where the driver will be punished for his conduct. He'll receive punishment that can range from a fine to community service to jail time.
You, on the other hand, need money to pay for your medical bills, damaged property, and recovery. You will need to pursue a civil case. There are two types of damages: special damages, which are out-of-pocket expenses like medical bills, child care, transportation costs and lost income. Then there are general damages, which include non-tangible items like pain and suffering, loss of consortium and mental anguish.
There is also the possibility of pursuing a dram shop case if the driver was served alcohol at a tavern or bar prior to hitting your car. If the bartender could see the driver was visibly intoxicated and served him anyway, the tavern could be held liable under a dram shop act.
The driver's insurance company will likely try to settle with you for far less than what your case is worth - but persevere. A case like this can potentially be worth a lot, and a savvy attorney can help you significantly.
Additionally, if the driver was uninsured or underinsured, you can potentially turn to your own insurance company if you have an uninsurance policy. These policies are intended to cover this very situation so that you aren't left in the lurch if an unprepared driver hits you and then shrugs, saying, “Well, sorry, I'm not insured!”
If you find yourself in this sort of situation and you're not sure what to do, you might want to speak with an attorney in order to preserve your rights. States are very particular about whether they'll let you talk with a lawyer prior to taking a chemical test. If you aren't sure, the best way to find out is to check the Enjuris law firm directory!