DUI / DWI, .08 and Below

[waynesan]

Today I realized that I don't know as much as I thought I did about TN Law pertaining to drinking and driving. So I thought I would throw this out and see what others may know.

While discussing this subject at a dinner tonight, a lady I know told the group that if you are pulled over and required to take a breathalyzer test, as long as you blow less than .08% you can't be charged with DUI / DWI.  She said she had blown .05% on one occasion and the patrolman let her go.  Another spoke up and said if you are involved in an accident and blow any percentage whatsoever you can be charged with Driving Under the Influence. I had never really thought about the details of the DUI Laws and was wondering if anyone on here may know more about the subject than what our dinner group seemed to know. I looked up the laws on Tennessee Code Annotated and could not find anything pertaining to any criminal penalty for a blood alcohol content of less than .08%, but I could have missed it.

 

[Luke E.]

I did know something about this but I wasn't aware that it was any car wreck that this would come into play. I was under the impression that this was the case in civil cases where there was injury or fatality involved. Now it very well could have been that the particular case that made me aware involved fatalities and I just assumed that it was limited to these types of cases.. I'm interested to see what those "in the know" here have to say.

[Oh Shoot]

Note there is no such presumptive level of .08 for possession of handgun while intoxicated.

 

Oddly, the way the statute has been revised last time, it is no longer a violation to be intoxicated while in possession of a long gun, unless you were also in a public alcohol serving establishment with it.

 

- OS

Edited January 3, 2015 by Oh Shoot

[Pain103]

You can be charged for DUI for a BAC under .08. The .08 BAC is just a per se number. You typically won't see someone charged with it unless they are a lightweight and are that impaired or maybe have some narcorics on board with it.

[Patton]

I have tried to prosecute a few over the years under .08 per se when they were severely impaired but it is a tough case. A wreck where there is serious bodily injury or a DUI stop with a minor in the car is not too hard to win for law enforcement under the zero tolerance legislation. If someone has a CDL, even driving their personal car cannot have a measurable amount.

[vontar]

I have a friend that went to a Police Training for DUI.  he was a volunteer drinker for them.  He was drinking in one room and being monitored and then other officers used him for the field sobriety test.  They had to test him and determine how close he was before giving him a breathalyzer test.   He only managed to get .07, however he failed the field sobriety test.  they told him had it been an actually side of the road test they could have arrested even though he was below the legal limit because he failed the test.

 

I was going to be one of the volunteer drinkers but couldn't get the day off work.  Maybe next year.

 

The program was pretty neat though, they provided a ride to the event, the alcohol and a ride safety home.  The goal was to keep the people right at the edge, some a little over, some a little under.    Different people are affected at different levels, he was surprised he had only got .07 but said he did feel it pretty good and he even agreed at that level he should not be driving.  He said it was a real eye opening event.

[TN-popo]

You can be charged for DUI for a BAC under .08. The .08 BAC is just a per se number. You typically won't see someone charged with it unless they are a lightweight and are that impaired or maybe have some narcorics on board with it.

 

This.

[Trekbike]

If someone has a CDL, even driving their personal car cannot have a measurable amount.

Interesting fact for the day.

[10-Ring]

I have a friend that went to a Police Training for DUI.  he was a volunteer drinker for them.  He was drinking in one room and being monitored and then other officers used him for the field sobriety test.  They had to test him and determine how close he was before giving him a breathalyzer test.   He only managed to get .07, however he failed the field sobriety test.  they told him had it been an actually side of the road test they could have arrested even though he was below the legal limit because he failed the test.

 

I was going to be one of the volunteer drinkers but couldn't get the day off work.  Maybe next year.

 

The program was pretty neat though, they provided a ride to the event, the alcohol and a ride safety home.  The goal was to keep the people right at the edge, some a little over, some a little under.    Different people are affected at different levels, he was surprised he had only got .07 but said he did feel it pretty good and he even agreed at that level he should not be driving.  He said it was a real eye opening event.

Once while camping in the Western North Carolina mountains a local sheriffs deputy came by to check us out.  He was obviously very bored and asked us if we minded if he hung out at our fire for the remainder of his shift.  One thing led to another and eventually he got the breathalizer out and would guess where each of us was after giving us a field sobriety test.  I remember blowing a .06 and I was in no condition to drive, and I'm not a light weight by any means.  One of my coolest cop encounters.    

[Tuffus]

Several years ago when the legal level was still 0.10  a nurse where I worked that was arrested for DUI was brought in to the ER to be tested. Her blood alcohol content was only 0.06 but had to go to jail anyway for the night. The deputy said she would beat it in court but he had to follow through with the arrest anyway. When his back was turned she thanked me under her breath thinking I had fudged the results for her so she obviously thought she was drunk. I let her know in no uncertain terms that I would not falsify a medical record just to get her off. I value keeping my license. I've also seen young teens passed out from alcohol that were nowhere near the legal limit.

[Guest Broomhead]

I'm curious how I would do on a sfst or breathelyzer. I've had gastric bypass and alcohol's effects hit really fast...like immediately after 1 shot and I'm definitely buzzed, 2 and I'm staggering. However, they wear off super fast too, within 30mins, depending on how fast I drank it, and I'm stone cold sober, no effects, visible or felt, at all. I don't know how long it stays in my blood stream or on my breath, though. I may have to try the volunteer drinker thing just so they can get experience with someone like me.

[DaveTN]

This is from a Tennessee DUI attorney website; but I am unsure of Tennessee laws. In the state I was in .08 was a legal presumption, but you could be charged down to .05 with supporting evidence.

If you refuse, BAC will not be an issue and you will take the fall anyway.
 

http://www.tnduicenter.com/tag/blood-alcohol-level/
Most people erroneously believe that one can’t be convicted of DUI if one registers below .08% blood alcohol level. Recently, the Tennessee Court of Criminal Appeals affirmed the conviction of a man whose blood alcohol level was only .03%, well below the statutory .08% per se (legal) level.

In this case, the officer testified that the defendant swerved his vehicle three times over the yellow center lines of the road. Then the Defendant approached an intersection and turned left without stopping at the stop sign. After being stopped, the Defendant failed all field sobriety tests and was subsequently arrested.

The Tennessee Court of Criminal Appeals ruled that a person does not have to have a blood alcohol content of .08% or any drugs in his or her system in order to be found guilty of DUI.

The Court considered all of the evidence, including the Defendant’s failure to perform field sobriety tests satisfactorily and the police officer’s observation of driving infractions by the Defendant, was sufficient to uphold the conviction.

This case emphasizes the need to be certain a qualified lawyer with sufficient DUI or DWI defense experience and expertise is hired to defend a Driving Under the Influence case even if the blood alcohol level is below the per se (legal) limit of .08%.

[bersaguy]

I noticed after my encounter with that truck back in 78 and they removed my spleen that my ability to consume even a small amount of alcohol it effected me far more than it did before my lost spleen. I don't drink at all if I am away from home and have to drive. Here at home I might take a small glass of Gentleman Jack and sip on it and I can feel the effect in a short time. My party days are over anyway so not really an issue with me these days................jmho

[Oh Shoot]

..... If someone has a CDL, even driving their personal car cannot have a measurable amount.

 

Interesting fact for the day.

 

That a specific TN statute?  AFAIK, Federal DOT rules are still:

 

- While in personal vehicle, no separate BAC standards set for CDL holders. If convicted of DUI in any state, 3 year suspension of CDL

- While driving commercial vehicle, .04 is presumptive DUI level. Any detectable amount, out of service for 24 hours

 

- OS

Edited January 3, 2015 by Oh Shoot

[Chucktshoes]

That a specific TN statute? AFAIK, Federal DOT rules are still:

- While in personal vehicle, no separate BAC standards set for CDL holders. If convicted of DUI in any state, 3 year suspension of CDL
- While driving commercial vehicle, .04 is presumptive DUI level. Any detectable amount, out of service for 24 hours

- OS

This is still correct per the FMCSA. A lot of misinformation gets bandied about on this subject.

Edited to add: as far as I can ascertain, TN holds to the FMCSA regs at the state level. Presumptive BAC for DUI = .04 in CMV and .08 in non-CMV.
 
Here is the TCA regarding BAC and driving.
 

55-10-401.  Driving under the influence prohibited -- Alcohol concentration in blood or breath.

  It is unlawful for any person to drive or to be in physical control of any automobile or other motor driven vehicle on any of the public roads and highways of the state, any shopping center, trailer park, apartment house complex or any other location which is generally frequented by the public at large, while:

   (1) Under the influence of any intoxicant, marijuana, controlled substance, controlled substance analogue, drug, substance affecting the central nervous system or combination thereof that impairs the driver's ability to safely operate a motor vehicle by depriving the driver of the clearness of mind and control of himself which he would otherwise possess;

   (2) The alcohol concentration in the person's blood or breath is eight-hundredths of one percent (0.08%) or more; or

   (3) With a blood alcohol concentration of four-hundredths of one percent (0.04%) and the vehicle is a commercial motor vehicle as defined at § 55-50-102.

Notice that in subsection 3 the requirement that for the .04 to apply the driver must be a CDL holder AND the vehicle is classed as a CMV. Like I said before, lots of misinformation is bandied about on this subject.

Edited January 3, 2015 by Chucktshoes

[waynesan]

I have tried to prosecute a few over the years under .08 per se when they were severely impaired but it is a tough case. A wreck where there is serious bodily injury or a DUI stop with a minor in the car is not too hard to win for law enforcement under the zero tolerance legislation. If someone has a CDL, even driving their personal car cannot have a measurable amount.

Patton, this is very interesting information. I am wondering what is the "zero tolerance legislation" you refer to. Can you cite it in the Tennessee Code? I think this could be exactly what I was looking for when I started this thread.

[Patton]

This is still correct per the FMCSA. A lot of misinformation gets bandied about on this subject.
Edited to add: as far as I can ascertain, TN holds to the FMCSA regs at the state level. Presumptive BAC for DUI = .04 in CMV and .08 in non-CMV.
 
Here is the TCA regarding BAC and driving.
 

Notice that in subsection 3 the requirement that for the .04 to apply the driver must be a CDL holder AND the vehicle is classed as a CMV. Like I said before, lots of misinformation is bandied about on this subject.

You may actually be correct. Most of what I have heard has been from CDL drivers themselves, but I would never try to make life exceptionally hard on them so I never processed a CDL holder unless I felt hat I really needed to.

[Oh Shoot]

You may actually be correct. Most of what I have heard has been from CDL drivers themselves, but I would never try to make life exceptionally hard on them so I never processed a CDL holder unless I felt hat I really needed to.

 

Point is, though, that there's no "zero tolerance" or even .04 for a CDL holder driving a private vehicle in TN, it's same as for anyone else.

 

Perhaps different in some states, couldn't say. I suppose just like gun laws, the Feds have no problem with states enacting stricter prohibitions in the matter?

 

- OS

Edited January 4, 2015 by Oh Shoot

[Chucktshoes]

You may actually be correct. Most of what I have heard has been from CDL drivers themselves, but I would never try to make life exceptionally hard on them so I never processed a CDL holder unless I felt hat I really needed to.

I think I see the source of the error. ;) I quickly learned that truckers are just as bad or worse than guns shop commandos about spewing forth complete and total nonsense pulled directly from the ass. I think some of us spend entirely too much time alone.

[Oh Shoot]

I think I see the source of the error. ;) I quickly learned that truckers are just as bad or worse than guns shop commandos about spewing forth complete and total nonsense pulled directly from the ass. I think some of us spend entirely too much time alone.

 

Probably the most common is, "it's against federal law to have a gun in a commercial vehicle." 

 

- OS

[Patton]

Point is, though, that there's no "zero tolerance" or even .04 for a CDL holder driving a private vehicle in TN, it's same as for anyone else.
 
Perhaps different in some states, couldn't say. I suppose just like gun laws, the Feds have no problem with states enacting stricter prohibitions in the matter?
 
- OS

No, actually zero tolerance specifically applies to the .02% maximum for minors. Wrecks with injury, a DUI with a minor in the car, and it seems like on other circumstance I believe case law set the precedence for a lower amount to be aggregated DUI if memory serves correct. I have won probably 2 DUI's out of 5 when challenged about a BAC under .08

[Chucktshoes]

Probably the most common is, "it's against federal law to have a gun in a commercial vehicle." 

 

- OS

Gah! If I could count the times I've heard that nonsense.

[Patton]

I have heard it a few also.

I google well, but when it comes to Lexisnexis I lack the skills. Interesting enough TCA 55-10-41 states something to the effect of illegal to operate under the influence of intoxicants or operate with a measurable amount of .08. Tennessee Code Annotated 55-10-401 is all one would use to arrest for a BAC under .08.

[waynesan]

Here is the statute:

55-10-401. Driving under the influence prohibited -- Alcohol concentration in blood or breath.

It is unlawful for any person to drive or to be in physical control of any automobile or other motor driven vehicle on any of the public roads and highways of the state, any shopping center, trailer park, apartment house complex or any other location which is generally frequented by the public at large, while:

(1) Under the influence of any intoxicant, marijuana, controlled substance, controlled substance analogue, drug, substance affecting the central nervous system or combination thereof that impairs the driver's ability to safely operate a motor vehicle by depriving the driver of the clearness of mind and control of himself which he would otherwise possess;

(2) The alcohol concentration in the person's blood or breath is eight-hundredths of one percent (0.08%) or more; or

(3) With a blood alcohol concentration of four-hundredths of one percent (0.04%) and the vehicle is a commercial motor vehicle as defined at § 55-50-102.

So I guess (as Patton referenced above) section (1) of this statute is where you "could" be charged with DUI if your BAC was less than .08%. Section (2)just guarantees you "will" be charged with a BAC of .08% or above.

[NextExit]

Could be, might be, will be charged.  I prefer "will not be charged" cus I'm not drinking and driving.  I have better ways to spend my money than on a lawyer who might find a loophole.  Just not worth it.  I don't care if I'm 5 miles from home and the taxi charges me $100.  that's cheaper than the consequences.  :2cents: