Blood Alcohol Content Under .08 Won’t Save You From Prosecution (Guest Post)

Let’s assume that you have bought a breathalyzer for personal use, which is a laudable enough effort on your part. By breathing into it after a few drinks, you would be able to know whether you’re still under the legal blood alcohol concentration or BAC limit of 0.08 percent or not.

If your BAC is at or over 0.08, then you can voluntarily get off the driver’s seat and simply take a cab home to avoid a first offense DUI or worse, a second one. If it’s anything under 0.08, you go on ahead and drive, and police won’t be able to arrest you for a DUI because your BAC is under the legal limit.

Or so you think.

If you believe you won’t be arrested and prosecuted for DUI because of a BAC of 0.07 below, then you are in for a harsh dose of reality. Drivers with a BAC under 0.08 get arrested and prosecuted all the time due to the following:

Noticeably impaired driving

How do police officers spot cars they suspect are being driven by intoxicated drivers? They just keep on the lookout for vehicles that drift, swerve, or weave, take a sudden turn, brake erratically, fail to stay in their proper lane, and accelerate suddenly, among other things.

In most states, “intoxicated” also applies to drugged driving, which also covers prescription medication, in case you didn’t know. After all, prescription drugs, despite their legal status, still have side effects like drowsiness and blurred vision, which basically impairs your driving.

Now let’s say that you have taken a prescription drug, then had just one drink later. That single drink won’t be able to send your BAC to the legal limit. It will probably get your BAC to a 0.02 if you’re a 180-pound guy or 0.04 if you’re a woman who weighs 120 pounds. But even if a breathalyzer test yields a low BAC, the police officer will still take your erratic driving into account, which was why you were stopped in the first place, and still arrest you for a DUI. In all likelihood, your prescription medication interacted with the alcohol, which led to your noticeably impaired driving.

Zero tolerance laws

All 50 states and the District of Columbia have zero tolerance laws in place. These laws, which were created to curb drunk driving among drivers below the legal drinking age of 21, dictate that underage drivers found with a minimal concentration of alcohol in their system will be arrested and charged with a DUI. So even a BAC of as low as 0.01 percent will still be enough to prosecute a young driver for drunk driving.

DUI charges will also be slapped on drivers of legal age who may be found with a BAC that is well under the 0.08 legal limit but are carrying children as passengers.

Breathalyzer problems

You may have a personal breathalyzer, but police officers will always use the one issued to them when determining your current BAC. And while breathalyzers are reliable most of the time, there are times when they turn out false positives. Your actual BAC could just be as low as 0.01, but if the cop’s breathalyzer reads 0.08 or higher, then it’s what he or she will believe and will promptly book you for DUI.

One primary factor in a false positive breathalyzer reading is how recent your last drink was before driving off. If you had a drink just moments before getting behind the wheel, then your mouth will have lots of alcohol residue while you’re driving. Once a police officer pulls you over and has you take a breathalyzer test, the tool will most certainly pick up on any trace of alcohol in your mouth, and you’ll have a BAC level that can send you straight to the police station.

Prosecutors arguing that you were above the limit while driving

If your BAC is much lower than the legal limit at the time you were stopped, then establishing impairment will be tricky even for skilled and experienced prosecutors.

However, a BAC of at least 0.07 or close to 0.08 would be an opportunity for the prosecution, since they could claim that your BAC was actually above the limit while you were driving and that it only dropped to 0.07-something because enough time had already passed by the time a police officer stopped your car.

The BAC limit in Utah is lower than 0.08

For the longest time, the legal BAC limit in all states stood at 0.08. Utah changed all that when it decided to lower the limit to 0.05 in December 2018.

Today, Utah stands as the state with the lowest BAC legal limit in the entire United States. Get caught with a BAC of 0.05 or higher there, and you will surely spend the night in jail.

In a world where having a BAC under 0.08 isn’t an assurance you won’t be arrested for DUI, why risk having even the tiniest drink before getting behind the wheel at all?

5 1 vote
Article Rating
Notify of
Inline Feedbacks
View all comments
David W. Perez

KEEP YOUR DAMN MOUTH SHUT. YOU. ARE. BEING. RECORDED. Do not make ANY statements and answer any questions with “Thank you for your question officer. I appreciate what you’re doing out here. But I do not wish to make any statements and I would like to speak to an attorney.” They don’t need to know anything about you or your life. They’re not your therapist, your minister, or your counselor. Don’t consent to searches. State several times “I do not agree to stay here with you for any reason. Are you detaining me or am I free to leave?” If… Read more »

This is a great post and so very true. I did not know that about Utah!

Soul Sanctuary

Interesting article. Thank you for sharing, I didn’t realize this about Utah.


* Indicates required field

Forman & Associates

Connect with The DUI Guy


Forman & Associates
The Forman Building
1139 South Fourth St.
Louisville, KY 40203

(T) (844) 4-DUI-GUY
(O) (502) 931-6788
(F) (419) 574-7156
Email: larry@larryformanlaw.com