Many people are not aware that you can be under the legal limit of .08 blood/alcohol content, yet still be charged with drunk driving. In Michigan there is a charge below Operating While Intoxicated called Operating While Visibly Impaired. They are two separate charges and they have two different legal standards.
When a person blows a .08 BAC or above, they are generally charged with Operating While Intoxicated. In order to prove this charge, the prosecution must actually admit evidence that the person took a breath test and was at .08 BAC or above.
If the prosecution cannot prove that the person blew above at or above a .08 BAC, then they can charge the person with Operating While Visibly Impaired. In order to prove this charge, the only thing that the prosecution must prove is that the person had consumed alcohol and that the alcohol impaired their ability to operate the motor vehicle. Usually this is proved by showing that the person looked like they were driving impaired (e.g. by swerving, speeding, failing to use a turn signal, driving erratically, etc.)
Last month Neil held a trial in which our client was charged with operating his motor vehicle while impaired by alcohol after he abruptly changed lanes once, was pulled over, and blew a .06 BAC on the breathalyzer. The Prosecutor’s office refused to dismiss the case and even filed a motion asking the judge to ban us from being able to argue that driving below a .08 BAC was legal. We filed a response and the judge agreed that we were able to argue to the jury that driving with a BAC less than .08 was not a crime, unless they could prove that he was actually impaired by the alcohol.
The trial lasted two days and after a very short deliberation, the jury agreed that there was no proof that our client had driven his car while impaired by alcohol. Another NOT GUILTY in the books!