Starting in 2019, Utah will become the first state in the country to lower the blood alcohol concentration (BAC) “legal limit” to 0.05. Every other state has a BAC legal limit of 0.08. The term legal limit refers to how much alcohol you can have in your blood while driving. However, in Arizona, it is possible to get a DUI even if your BAC is BELOW the legal limit.
Arizona has several different laws when it comes to driving under the influence. The common one we hear about is driving with a BAC of 0.08 or greater. This comes from the Arizona Revised Statutes (our criminal code) section 28-1381A(2). The “A2” refers to the subsection of the DUI law. Before A2 is A1, which says it is illegal to drive while impaired to the slightest degree by drugs or alcohol.
What is impaired to the slightest degree?
Nearly all experts agree on the “universal impairment” number – the BAC where every person is impaired to some degree. That is the BAC of 0.08 that we are all familiar with. However, some studies suggest that people become impaired at a BAC of 0.05, which is why Utah is lowering their legal limit.
In Arizona, there is no exact definition of impaired to the slightest degree. There is no formula for a judge or jury to look at and say if a suspect did X, Y, and Z they are impaired, or if they did A, B, and C, they are not impaired. Instead, juries must look at all of the facts of the case.
If someone is swerving all over the road, falls down while completing the field sobriety tests, but only has a BAC of 0.06, a jury could find that they were impaired and thus guilty of a DUI, even though their BAC is below a 0.08.
Presumption of Impairment
Arizona law does provide some guidance in determining if someone is impaired. The law states that if an individual’s BAC is 0.08 or greater, a jury is to presume that the person is impaired. The law also states that if the person’s BAC is lower than 0.05, the jury is to presume that the person is not impaired. That presumption does not, however, make it fact. Lawyers for either side can argue that a person is impaired under a 0.05, or not impaired over a 0.08. The jury has to make the final call.
If a person’s BAC is between 0.05 and 0.08, there is no presumption under the law. In this range, a jury must listen to the evidence and decide for themselves if the person was impaired on not by alcohol.
Will I get a DUI if my BAC is under 0.08?
The short answer is: maybe. Some prosecutors will dismiss cases when the BAC is less than 0.08. Others will prosecute any DUI arrest. If your case proceeds to a trial, a jury will have to look at the facts and make a determination if you were impaired while driving – even if you were under the “legal limit.”