Can you be charged with drunk driving if you aren’t legally drunk?

On Behalf of | Nov 23, 2022 | Criminal Defense |

You know that drunk driving is never a good idea, so you carefully watched your consumption while you were out. You were sure you weren’t over the legal limit – and the Breathalyzer test you took when you were pulled over confirmed it.

So, how did you end up facing drunk driving charges anyhow?

You don’t have to be legally drunk to be too drunk to drive

In every state, a blood alcohol content (BAC) of 0.08% or higher is now considered “per se” evidence that you’re too intoxicated to be driving – which means that you’re going to be charged with an OWI (operating while intoxicated) offense. 

Unfortunately, a lot of people make the mistake of thinking that they cannot be charged with a crime if their BAC is lower – and that’s simply not true. If the officer can tell that you’ve been drinking and you’re driving reflects it, you can be charged with “operating while visibly impaired,” or OWVI.

An OWVI charge means that the officer cannot prove that you are legally drunk, but they do think they have enough evidence to show that you shouldn’t be driving. That evidence can come from things like:

  • Your admission that you’ve been drinking, whether you say that was a single beer or a six-pack
  • The odor of alcohol on your breath or clothing, along with things like slurred speech 
  • Your inability to successfully complete a standard roadside sobriety test, like the walk-and-turn test or the one-legged stand
  • Disoriented or unusual behavior when you’re interacting with the officer

The fact that you have any alcohol in your system at all can only strengthen their case, but an officer must also show that your poor driving prompted the traffic stop. For example, you may have been weaving in traffic or driving too slowly, which is what attracted the officer’s attention in the first place.

If you’re facing an OWVI charge that you think is unfair, don’t try to talk your way out of the situation. It’s far better to have an experienced defense on your side when your future is at stake.


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