Unfortunately, yes. There are two (2) ways to convict someone of DWI. The first is through a number (BAC or Blood), and the second is by showing general impairment (mostly through field sobriety tests/admissions, etc.). But what if you blow a 0.07 and do well on the field sobriety tests?
You still could be convicted, although it’s likely because the Prosecution would try to say that the ‘impairing substance’ is not only alcohol, but some other impairing substance. This occurs often with cases in which marijuana and/or other drugs are found in the vehicle or on the defendant’s possession. The Prosecution’s argument is strengthened further if the defendant admitted to taking an impairing substance (other than alcohol) prior to driving.
If no other substance is offered other than alcohol, and the BAC is registered at a 0.07, the Prosecution’s best argument at that point is that although the defendant now blows a 0.07, he was above that level at the time he was driving. This is commonly referred to as Retrograde Extrapolation, and will be discussed in great detail in the next blog post.
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