Robin Fuson

Is It Possible To Be Arrested For DUI Blowing Less Than 0.08?


What is the best way to deal with being stopped by the police while you are driving in the Tampa Bay area? When the flashing lights go off behind you, the key is to be as friendly and cooperative as possible. Put the officer at ease, and he or she will very probably reciprocate. When the police signal you to stop, pull over safely to the right side of the street or highway and completely away from the traffic. Turn off the vehicle, open your window, and set your hands on the top of the steering wheel.


Let the police officer see your hands the entire time, and do not reach for your driver’s license or registration before the officer asks for them. When and if you are asked for these documents, produce them. You are not obligated to answer any questions beyond identifying yourself, and in fact, you have the legal right to remain silent. If you believe that a police officer suspects you of a crime – such as driving under the influence – politely insist on your rights by saying something like, “I’m sorry, officer, but I would prefer to exercise my right to remain silent.”


According to Tampa DUI attorney Robin Fuson, “In virtually every arrest, you are arrested before you are given a breath test.” If you are arrested for DUI, you will almost certainly be asked to blow into a breathalyzer device to measure your blood alcohol content (BAC) level. The law presumes that a driver who “blows” at 0.08 percent or above is under the influence. In Florida, if you are asked to blow into a breathalyzer after you have been formally placed under arrest, you must. Under the “implied consent” law, merely driving on a Florida street or highway “implies” your consent to a breathalyzer exam if you are arrested for DUI.

After a formal arrest for driving under the influence, the police officer should inform you that if you refuse to blow into the breathalyzer device, your license will be suspended for at least a year, and your refusal to cooperate can be used against you in court. The officer should also tell you that if you have had your license suspended previously in Florida for refusing to test, a second or subsequent refusal to test can be charged as an additional misdemeanor offense.


All fifty states establish the legal blood alcohol content limit at 0.08 percent, however a DUI lawyer believes drivers still may not fully understand that they do not have to blow a 0.08 or above on a breathalyzer device to be prosecuted or convicted of driving under the influence. If the state of Florida can prove to a jury that a driver was too impaired to operate a motor vehicle safely, it does not matter what the breathalyzer result says.

One recent case in Portland, Oregon is a textbook example of what can happen. A driver named Si Xuan Vo was observed by the Portland police repeatedly swerving across the center line. He stumbled as he walked, and he failed three field sobriety tests, as one officer put it, “miserably.” However, when Vo blew into a breathalyzer device, the 47-year-old Portland man measured a BAC level of only 0.07 percent, just under the legal limit. After a two-day trial, an Oregon jury nevertheless convicted Vo of driving under the influence.


One concern of police agencies in the Tampa Bay area is the increasing number of drivers who combine alcohol with marijuana or with other drugs before driving. Cannabis consumption coupled with only moderate drinking can cause intoxication that makes it impossible to drive a vehicle safely, but the breathalyzer devices test only for alcohol. That is one reason why prosecutors in the Tampa Bay area and across the nation are cracking down on intoxicated drivers with BAC levels that measure below 0.08 percent.


If you are arrested and prosecuted for driving under the influence – even if you blow at 0.08 or higher – you are considered innocent until proven guilty. Consider that in 2011 in Florida, there were 55,722 DUI charges but only 33,625 driving under the influence convictions. That means good Florida DUI lawyers routinely succeed on behalf of their clients in this state. A DUI attorney will examine all of the evidence in a driving under the influence case and look for legal grounds sufficient to have the DUI charge dismissed or reduced. If the arrest occurred in Nevada, a DUI lawyer in Las Vegas, NV may be able to help.


If the case proceeds, you might win in a trial, but your attorney may want instead to negotiate your case directly with the prosecutor. Even if the evidence against you is compelling – and you are convicted of driving under the influence – a Tampa DUI defense attorney can work for reduced or alternative sentencing. If there are no injuries or property damage, a conviction for a first offense misdemeanor DUI in Florida is punishable by up to nine months in jail, up to $2,000 in fines, and a one-year driver’s license suspension. Subsequent convictions can result in more time behind bars, steeper fines, and longer driver’s license suspensions.

Breathalyzers are sensitive devices; they must be routinely calibrated and maintained for the readings to be accurate. If a DUI attorney can cast doubt on a breathalyzer device’s result, that result may be deemed inadmissible in court. In 2012, for example, nearly a thousand driving under the influence convictions in San Francisco were challenged because police officers there failed to calibrate the breathalyzer devices. A good DUI defense lawyer can often discredit breathalyzer results in court.


You’ll need the advice and services of an experienced DUI attorney if you make a bad judgment call and you are charged with DUI – or if you are wrongly accused and you’re innocent. But of course, the real key to avoiding a driving under the influence conviction – along with avoiding DUI-related collisions, injuries, and worse – is simple, and it’s been said a thousand times: Don’t drink and drive.

Driving under the influence still takes about 10,000 lives a year in the United States. If you plan to share a few drinks with friends, take that one extra step and plan a way to get yourself home that does not involve driving. Call Uber, a taxi, or a limo. Arrange for a designated driver, a room, or a night on your friend’s sofa. The last place anyone wants to wake up is in a jail – or a hospital.

Robin Fuson
By Robin Fuson