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I blew under .08, so why am I still being arrested for DUI?

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Many people in the New Orleans area probably know that it is illegal to drive with more than .08 blood alcohol content in their system. This blog has even discussed how our law firm will use strategies to attack the results of the police's breath or blood test, as they are not always reliable and, in some cases, were not lawfully obtained.

However, although challenging a breath test is important, someone who has been pulled over on suspicion of drunk driving in this state should not breathe a huge sigh of relief of the test comes back under .08, or alternatively, the test later gets tossed out of court for legal or other reasons. Under Louisiana law, while a valid breath or blood test showing more than .08 is a relatively easy way to prove someone was driving drunk, it is not the only way for the state to get a drunk driving conviction.

All police and prosecutors really need to prove in order to get a drunk driving conviction is that a person's driving was affected in substantial way by alcohol in their system. In other words, some people may start driving erratically with a lot less than .08 blood alcohol content, and these people can still be held accountable for drunk driving. Police will rely on other evidence, like the driving behavior they observed, field sobriety tests, the person's behavior and even the person's own statements about their sobriety or how much they had to drink.

While someone in Louisiana can be arrested for DUI even if they "pass" a blood or breath test, that does not mean they will be convicted. In fact, when a breath test is not in the picture, more defenses may be available, such as arguing that one's driving really wasn't that bad or was attributable to other factors.

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Craig E. Gibbs, Attorney at Law
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New Orleans Criminal Law Office

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