Can I beat a DUI in court if I blew a 0.05?

Question

Jonathan Willett · Answer

If there is no bad driving and you have a decent lawyer, it is do-able.

Steven D. Dunnings · Answer

Hire a lawyer.

Jacob P. Sartz · Answer

You are presumed innocent until proven guilty. The prosecutor needs to prove any  allegations beyond a reasonable doubt. You have a right to council. If you  cannot afford legal council, the court may appoint you an attorney at the  public's expense. Speaking generally, there is no "legal limit" if alcohol intoxication, based on  the proofs, impacts a driver's ability to drive; it's a matter of degree and  severity in terms of the potential charge. In Michigan, for example, a person  with an alleged alcohol level below the "legal limit" will be charged with the  lesser offense called driving or operating a motor-vehicle while impaired.   I'd recommend you retain an attorney to assist you with this matter.

Ernest Biando · Answer

I dont know all the facts of the case but I have defended numerous DUI clients and with the reading I would say you have a good shot at it in a jury trial.

Gregory Casale · Answer

It's possible to "beat" any charge if something was done wrong by the police or the facts are in your favor. However, there are no guarantees. A .05% certainly sounds like a very favorable fact. However, there could be an inference that because the alcohol reading was so low that there were drugs in the system. I am not suggesting that you had drugs in your system, I am just pointing out that it is impossible to determine the likeliness of success with only one fact. I would say that based on alcohol consumption alone, a .05% is a very good fact in your favor. I would need to know how long after your last drink the test was taken, what if any driving was observed by the arresting officer or other witnesses and a host of other details before telling you that you could or could not beat  a charge. But you certainly have a good start.  If you would like to discuss this case in more detail you can reach me through the numbers listed below. The one thing that I can surely tell you is that you should have an attorney representing you, no matter how good you think your case is. A good prosecutor can do a lot of things with poor facts to make them sound better than they may appear to you.

Thomas Mueller · Answer

Yes, unless you were using drugs and the D.A. can prove it with a blood test  result or other reliable evidence.

Thomas Tomko · Answer

Thank you for your inquiry  It is possible to be successful at a trial with a .05.  However, it is not a guarantee.  If there is proof of erratic driving, combined with drinking, then there could still be a conviction for impaired driving.  You should retain an attorney and discuss the options with the attorney.  Then you should have advice with which to make an informed choice as to what to do in your case.  I hope that this was helpful.

Jared Altman · Answer

Yes. You can beat any DWI with any reading on the right facts. You need a lawyer.

Eric Sterkenburg · Answer

If a person blew a 0.05 and is over 21 years-old then he can beat the (b) part of the code section. However, depending on the facts he could still be found guilty of the (a) section of the code. The facts make the case. Contact an attorney for a consultation giving him all the facts.

Stephen Freeborn · Answer

Maybe.. Maybe not.  It depends upon the facts of your case.  You don't say you age.  If you are under 21.. the BAC level is really irrelevant since you are not supposed to be drinking.              Also the level of the BAC is only one factor in the statute, the other factor being "whether or not your driving has been affected to an appreciable degree by your alcohol/drug consumption".              You need to consult with an attorney regarding the facts of YOUR case and he or she can make a determination.  There is a lot at stake with a DUI.  Do not take it lightly and think that just because you blew a .05 you have nothing to worry about.  Consult with an attorney.

Craig Elhart · Answer

To be legally drunk in Michigan you must have a blood alcohol content of 0.08 or higher.  It is legal to drive with a blood alcohol content of 0.05, however, if you were endangering other motorists there are laws other than OWI that you could be charged under.

Andrew Subin · Answer

You should beat the DUI, but you may be guilty of negligent driving in the first degree.  Andrew Subin Attorney at Law (360) 734-6677 andrewsubin@comcast.net

Michael Palumbo · Answer

You need to retain DWI counsel ASAP, and we can represent you. With a .05 you have a good case but can still be found guilty as charged. This is why it is so critical to retain an attorney such as myself who was a former police officer.

Ryan L. Russman · Answer

A DWI can be challenged if you blew 0.05 BrAC. The impact on the result in your case is contingent on a number of factors: first, if you are under 21 the BrAC is 0.02,  second, your performance on the field sobriety tests, and third the officers observations regarding your operation will all come into play. Additionally, the result could also be challenged on technical grounds if those circumstances exist to suppress or exclude the results.

Michael Morgan · Answer

I like to think any case is winnable but that is obviously a good piece of evidence for the defense.

Eric Chandler · Answer

Yes.  Unless you are alleged to have been under the influence of other drugs; .05 is under the legal limit.

Jules N. Fiani · Answer

Yes.

Gary Moore · Answer

Definitely. Call me to discuss your case.

Jared Austin · Answer

First of all, .05 is below the limit of 0.8 so that would almost make their case impossible to prove unless they are charging you with Operating While Visibly Impaired which doesn't require proof that you were over the limit. Definitely invest in an experienced DUI attorney. The retainer you spend will more than pay for itself in the long run, especially if the case gets dropped or dismissed.

Michael J. Breczinski · Answer

Possibly. The thing that you could be convicted of is impaired driving. The question becomes "Did the alcohol impair your ability to drive?" There is not minimum limit of alcohol for this offense.  Get an attorney.

Kevin O'Grady · Answer

No matter what you "blew" the best way to win against a DUI charge of impairment or BrAC, is to hire a defense attorney that will be thorough and relentless and fight for you.  The BrAC result by itself is just one of many factors an attorney can use to win for you.  Consult and hire a DUI attorney quickly.

Jeff Yeh · Answer

Depends on your age. If you're under 21, then you can still be convicted under a separate 0.05 statute. Otherwise you have a great case, but you'll still need an attorney to negotiate for you.

Robert Driessen · Answer

Yes it is very possible. A lot will depend upon your age and if you are over 21.

Geoffrey MacLaren Yaryan · Answer

Of course, as long as they are not claiming there were drugs in your system   as well as the alcohol.

James Schoenberger · Answer

If you are over 21, a BAC of .05 will not support a DUI charge. If you are under 21, a .05 can be DUI.

Timothy Klisz · Answer

Only at a jury trial. The prosecutors usually don't deal much on owi cases.

Mark Cogan · Answer

With a good lawyer, you can beat a charge like this. Without a good lawyer, you may be convicted. We defend clients on charges like this all the time.

Jason Savela · Answer

Well, I can.  I am not sure if a non-lawyer, skilled in DUI defense, could do it.  But, maybe.  The DA will probably offer a reckless with alcohol classes.  That is too high in my mind.

Edward Blum · Answer

Yes.  Unless you are under 21 or a commercial (class A) license holder or your driving was so egregious to warrant a finding of guilt under the (a) count.

Eric Schurman · Answer

I would certainly think so.  I would need to know more details however.

Michael Lynch · Answer

Yes, it is possible.  If you are over 21 years of age and, other than  the BAC of 0.05 there were no other evidence of impairment.  However,  having said that, BAC is only one measurement of impairment.   Additionally, individuals who refused to be tested still have been  convicted of a DUI.  As with many questions, it all depends on the other  facts.

Michael Nichols · Answer

Absolutely. It is critical that you call a qualified DUI attorney.

Hugo Florido · Answer

Yes, normally if you blow below less than .08 ( the legal limit in Florida) you are presumed not to be under the influence.

Michael Maltby · Answer

That is certainly a good start but it depends on whether there are other signs of impairment.  With a blow of .05 the prosecution has to prove that you driving was appreciably affected by drugs and/or alcohol.  They cannot proceed on the so-called per se prong, that is that your blow was .08 or greater.

Dennis Roberts · Answer

Depends what the cop says.  If it is just a .05 you are fine unless he also says  you couldn't pass the sobriety tests and so he believed you were also doing  drugs.  Did you take the urine or blood tests as those show whether you have  drugs in your system.  The breath test doesn't which allows them to make up  these "I think he was under the influence of drugs as well as booze" stories.

Michael Chastaine · Answer

If you are over 21 then it's likely.  If your underage, then you are over the legal limit for your age.

Terry Nelson · Answer

The tested BA level has little to do with the basic DUI with which you were charged.  You were not charged with the additional penal code violation of over .08 BA.  The officers testimony about your observed driving and condition will be the basis of prosecution in your case.    Of course you can fight the charges.  When arrested or charged with any crime, the proper questions are, can any evidence obtained in a test, search or confession be used against you, and can you be convicted, and what can you do?   Raise all possible defenses with whatever admissible and credible witnesses, evidence, facts and sympathies are available for legal arguments, for evidence suppression or other motions, or at trial.  If you don't know how to do these things effectively, then hire an attorney that does, who will try to get a dismissal, diversion, reduction or other decent outcome through plea bargain, or take it to trial if appropriate.  If serious about hiring counsel to help in this, and if this is in SoCal courts, feel free to contact me.  Ill be happy to help use whatever defenses there may be.    Keep in mind a little free advice:   When charged or arrested for DUI, whether alcohol or drugs, then upon release from jail or booking the defendant is given documents that include a notice that you have only ten days to file a request with DMV for a hearing on an appeal of an automatic one-year suspension of your license imposed by DMV.  That is separate and runs consecutively with any suspension that may be imposed by the court. Contact DMV and do so, timely, then appear at your scheduled DMV appeal hearing and present any supporting evidence and testimony.  If you don't know how to do these things effectively, then hire an attorney that does.

Jason Overton · Answer

You need an attorney.  People get convicted of DUI with no alcohol in their body if they're impaired by some other drug.  The amount of alcohol may not matter, if your driving was erratic and impaired.  Your attorney will know how to attack it.

Robert Myers · Answer

If you are over 21, then the DA or CA will only be able to charge you with 23152(a) and have to prove that you were impaired.  It makes their case A LOT harder but not impossible. Unfortunately, without seeing what evidence they have against you, it would be hard for any one to say whether or not you can "beat" the DUI.  It is very likely that you were not guilty of the crime but, again, a review of the evidence would be necessary in order to make that determination.

Find a Lawyer

Ask a Lawyer

Read Legal Articles

Ask a Lawyer

Read Legal Articles

Can I beat a DUI in court if I blew a 0.05?

39 ANSWERS

Find Local Criminal Law Lawyers

Helpful Resources

Ask a Lawyer