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How do I get this DUI DWI off my record?

A list of states and a brief summary of their expungement laws to help you understand your options.

Can I get a DUI if I was under the limit?

Recently on our DUI forum a user asked, “I was went out last night and drank a few beers. I was stopped by the police and arrested. My blood alcohol concentration level, however, was only 0.05%. I though the illegal limit was 0.08% or higher. Can the police arrest me if my BAC is under the legal limit?”

State DUI laws

All states have passed driving under the influence laws (DUI) which make it illegal not only to operate a vehicle if the driver’s blood alcohol concentration is above the per se legal limit of 0.08% or higher, but also if the driver is impaired to such as degree that they are unable to safely operate their car, regardless of their blood alcohol concentration level.

It’s also important to note that you do not have to consume alcohol to be intoxicated. In fact, any illegal drug, prescribed medication, or over the counter medication may have side-effects which make it difficult to safely operate a vehicle without increasing your blood alcohol concentration level above the illegal limit.

What does the state need to prove to win their DUI case?

The state will have to prove certain elements of their case beyond a reasonable doubt for you to be convicted of DUI. Specifically, they will have to prove one of the following:

-You were driving or in physical control of the vehicle and your BAC was above 0.08%.
-You were driving or in physical control of the vehicle and your “normal faculties” were impaired.

Now, it’s important to note that some states may require that a person actually be driving their car to be convicted of DUI, while other states may have more generous terms for DUI such as “operating a vehicle” or in “actual physical control.” Terms vary, which means some states may allow you to be charged with DUI even though you were not driving. In these states courts may evaluate whether or not you had the ability to operate the car, whether the car was on or off the roadway, and whether the keys were in your possession.

Evidence for the DUI conviction

Now, let’s get back to the issues for your DUI arrest. Although the state can arrest you with a BAC of less than the illegal limit, it could be more difficult for them to win their case without conclusive evidence your BAC was above the legal limit, which they will not have if the chemical test showed your BAC was only 0.05%.

This does not mean, however, that the state cannot win their case if they have enough additional evidence. Evidence that the state could present to strengthen their case could include any of the following:

-Police testimony
-Eye witness testimony
-Evidence of dangerous driving actions
-Injuring other drivers
-Alcohol on the breath
-Failing a field sobriety test
-Failing a preliminary breathing test
-Information you provided to them to substantiate the charges of DUI

If the police have enough evidence that you were not able to safely operate your vehicle, they may arrest and charge you with DUI regardless of your BAC. For example, if you were driving and caused an accident and the police responded, finding you standing by the wrecked car and apologizing for the accident and hearing you comment that you just a few drinks, the confession, plus the accident, could be evidence that you could not safely operate your car (even if your BAC was below the legal limit).

Bottom Line:

Any DUI arrest should be taken seriously, even if your BAC was below the legal limit. If the police arrested you it means they had probable cause to believe you were driving under the influence and could not safely operate your vehicle.

(Read more: - DUI Law )

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