A lot of people think that they cannot be prosecuted or charged with DUI if they register less than .08 on the breath instrument back at the police station. In fact, charges for DUI in Spokane are becoming more and more common. So lets take a minute to look at this. Under state law, a prosecuting attorney can convict on a drunk driving charge if a driver is over .08 breath alcohol, or if the driver is “affected” by the intoxicating liquor. This second avenue is referred to in the criminal courts as the “affected by” prong, and drivers are usually pretty surprised to learn the law on this subject. In years past, this second prong was largely unenforced by prosecutors, meaning if the State didn’t have a blood test or breath test result of over .08, a DUI charge would not be brought. Things have changes with more and more Spokane DUI lawyers seeing such charges.
How <.08 DUI Charges are Defended
Unlike a DUI case over .08, in a case under .08, a defense attorney will often introduce the breath reading rather than try to suppress the reading. Despite the law (as discussed above), many jurors still think that if a person is under .08 then they “passed” the BAC test. Instead of relying on the BAC test, prosecutors will try to make their case based on the FST’s or field sobriety tests. However, FST’s can be subjective. To counter this subjectivity, many times defense lawyers will seek to introduce video evidence taken from an officer’s dash cam or body cam. Occasionally there will be video of the defendant taken by the jail or sheriff’s office. This video will often show the jurors how the driver acted, and whether or not he or she had poor balance, or coordination. Many times the video footage will not be preserved for very long so it is important for a defense lawyer to request this video right away.
Tactics of Prosecuting Attorneys
In .08 DUI cases, a prosecutor will often submit evidence of retrograde extrapolation. In other words the prosecutor will argue that the driver could very well have been .079 when he was at the police station, but was actually much higher an hour earlier when he was pulled over. Most scientists would say that an average human body will burn off about .015 alcohol every hour. If the breath reading was .079, the prosecutors would argue for a conviction by explaining that the driver could have been .084 an hour prior.