We were contacted this very morning (Sunday- yes we see clients on Sundays) by a poor guy that was stopped while driving his truck because his fender was hanging too low. Deputy Doughnut smelled alcohol on his breath and demanded the fields (which you do not have to perform). Following the fields, which the accused thought went well, the accused was arrested. At the police station he blew a .06 and was charged with DWI, (driving while impaired). He has two questions:
1. How can I be arrested for DWI while blowing under the legal limit of .08?
2. Did my number get lower as a result of exhaling or breathing out my nose and mouth?
As we know from my numerous earlier posts on the subject, you can and will be arrested even for blowing a low blood alcohol number. The legal limit advertised on TV and road signs is .08, that is a governments dirty little secret. The cops don’t give a hoot about the number because they know they can get you anyway! If you blow a .04-.07 or lower, they can and will arrest you; particularly if you exhibit weird behavior such as driving erratically, or poor field tests (which you should not be doing) or acting strange or showing other signs of impaired coordination. One’s BAC (blood alcohol content) is a great tool for the police and courts to convict you of DUI, but in the absence of .08 BAC number, the cops simply look for other behavior that supports their witch hunt. Poor performance on the field tests is more then adequate to support that endeavor.
I remember years ago with a recently retired judge, we had a .06 case and the client was under 21 so the judge must have thought he would use the experience as a learning lesson for that young man and he convicted the client of the DWI charge despite the low BAC. In my 20 years experience that is the only case that comes to mind that we have not been able to beat on a low number. But nonetheless, the clients are still charged, lawyers have to be retained, the case needs to be tried, the client is put through the emotional ringer, etc.
Take home message, when the Government says in its advertisements “Over the .08 limit, under arrest” they do not mean that, it is a fallacy (so what’s new, when was the Government ever accurate and honest.) The cops and courts will charge and hear almost any BAC number so a prudent Maryland Driver is encouraged to keep that in mind when imbibing at the bar.
As to the second question regarding blowing out your mouth and nose prior to the test, essentially breathing heavy or hyperventilating ahead of the test, yes this can potentially help in close cases. It can be the difference between a .14 and .15 which makes a big difference or between a .07 and .08 which also makes a big difference.
You see, alcohol can build up in your mouth, throat, orthodontics, teeth, mouth jewelry etc. By actually breathing heavy prior to a blow test you can endeavor to clear out any collection of “mouth alcohol” or stored alcohol content which actually can have a substantial impact on your BAC number. That’s why the cops tell you to take a big long breath, hold it and then blow hard. They know the longer you blow, the higher you go. Thus, clearing your mouth and throat prior to blowing in the machine is always a good idea. If you get caught up in the alcohol web and want to discuss any of these concepts, give us a call anytime to discuss how we can help.