Through the combined efforts of governmental agencies and private advocacy groups over the last several decades, the public has been inundated with warnings about the dangers of drinking and driving. Also as a result of those efforts, states have strengthened their driving under the influence (DUI) laws, including lowering the “legal limit” to 0.08. In fact, the “legal limit” has become the focus of both DUI enforcement efforts and the public’s perception of the crime of driving under the influence. Can you be convicted of DUI, however, even if you passed your breath test? An Omaha DUI lawyer at Petersen Law Office explains the true significance of the “legal limit.”
Nebraska DUI Law
In the State of Nebraska, the criminal offense of driving under the influence (DUI) is governed by Nebraska Revised Statute 60-6, 196 which reads as follows:
(1) It shall be unlawful for any person to operate or be in the actual physical control of any motor vehicle:
(a) While under the influence of alcoholic liquor or of any drug;
(b) When such person has a concentration of eight-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his or her blood; or
(c) When such person has a concentration of eight-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his or her breath.
(2) Any person who operates or is in the actual physical control of any motor vehicle while in a condition described in subsection (1) of this section shall be guilty of a crime and upon conviction punished as provided in sections 60-6,197.02 to 60-6,197.08.
As you will note, both section (b) and (c) refer to what has been dubbed the “legal limit” when referring to drinking and driving. What most people do not pay attention to anymore is section (a), which allows for a DUI conviction without a Blood/Breath Alcohol Concentration (BAC) level of 0.08 percent or above.
Chemical Test Results
In a typical DUI investigation, the arresting officer will make a determination at the scene that probable cause exists to arrests the suspect on suspicion of driving under the influence. Once they arrive at the jail or station, the suspect will be asked to submit to a chemical breath test. The chemical breath test does not actually take an exact measurement of the amount of alcohol in your system. Instead, it provides an estimate based on the amount of alcohol found in the breath you expel when you blow into the machine. The results are then recorded as a percentage of breath alcohol content, or BAC. If the results show a BAC level of 0.08 percent or higher, that result will become evidence against you at trial. Sometimes, a more accurate, but also more invasive, blood test will be done. This is typically only used when the suspect is unconscious or otherwise unable to perform the breath test.
If I Pass the Chemical Test Am I in the Clear?
This is where the law gets a bit tricky. Contrary to what most people believe, a chemical test result is not necessary to convict someone of DUI. It has become commonplace to rely on the test results; however, it is not legally necessary. Section (a) of the DUI statute makes it illegal to operate a vehicle “While under the influence of alcoholic liquor or of any drug.” Therefore, it is possible to be convicted of DUI in the absence of a test result or with a test result of less than 0.08 percent if the prosecutor can prove that you were “under the influence.” Therein lies the problem for the State and is the reason why the “legal limit” statutes were enacted across the country. Proving that someone was “under the influence” is difficult because the term itself is ambiguous and open to interpretation. It is, therefore, possible to be convicted of DUI even if you passed your breath test, but unlikely given the difficulty the State will have proving the required elements of the crime.
Contact an Omaha DUI Lawyer at Petersen Law Office
If you are currently facing DUI charges in Omaha, Nebraska, take the time to consult with an experienced Omaha DUI attorney as soon as possible to discuss your legal options. Contact the Omaha DUI defense attorneys at Petersen Law Office 24 hours a day at 402-513-2180 to discuss your case with an experienced defense lawyer.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
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