Most people think that if you blow below a .08 on the breathalyzer, that you can’t be convicted of drunk driving. Not true.
In North Carolina and, now, all states, a .08 blood alcohol level is per se drunk driving. That means that, provided the jury believes that you blew a .08, that the machine was operating properly, that the machine is accurate in general, and that the machine was used properly, a .08 is evidence that you were, in fact, driving while intoxicated. In addition to showing that the machine was malfunctioning, your defense attorney could provide other reasons for the jury to disregard the reading. For instance, people who are diabetic may blow higher levels on a breathalyzer machine because of their condition. Other medical conditions may cause a higher-than-normal reading.
But let’s say you blew a .06. Are you home free? No. A jury can find that you are guilty of drunk driving based on the police officer’s observations about your use of the car, and your behavior or condition at the time he interacted with you. For instance, if the police officer says you slurred words, had glass eyes, failed to complete the various tests he gave you, were unable to complete the horizontal gaze exam without moving your head, smelled of alcohol, or otherwise were driving erratically, these are statements about your condition by the police that a jury could use to find you guilty of drunk driving.
Of course, it’s better to blow below a .08, because that gives a defense lawyer a lot more to work with in terms of defending you against a drunk driving charge. But you can be – and people are found – guilty of drunk driving and DUI charges even though they have not blown .08 or higher.
In North Carolina, the DWI statutes are very complicated. But it’s also important to note that blowing below a .08, being cooperative with the police officer, consenting to the officers’ requests for breathalyzer test are all things that will probably be good factors for you when your defense lawyer argues your case.
That’s because within the DWI statute, there is a range of punishment. Level 5 is the best position to be in. Aggravated Level 1 is the worst. Various mitigating factors can contribute to a judge determining that you are a Level 5 rather than Level 4, or Level 3, or worse. If you are convicted of a DWI as a Level 5 offender, you will lose your license for a year (although you will be eligible for a limitied driving privilege). But if you are convicted of a Level 2, Level 1, or Aggravated Level 1, things get much worse.