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Is it Possible to Get Out of a DUI If You Blew Over 0.08 Percent?

 Posted on August 18, 2022 in DUI

Oakbrook Terrace DUI Defense LawyerMost people are familiar with the “legal limit” for blood alcohol content (BAC). In 49 U.S. states, including Illinois, the legal limit is 0.08 percent. A driver with a BAC of 0.08 percent or more is intoxicated “per se,” or intoxicated as a matter of law. If you are pulled over by the police, given a breath test, and the results show a BAC over the legal limit, you will be arrested for drunk driving.

However, in some cases, it is possible for an individual to avoid conviction for driving under the influence (DUI) even if they blew over 0.08 percent. Read on to learn more.

Breathalyzer Test Results May Be Unreliable

The portable breathalyzers police carry around with them are used to establish probable cause for the DUI arrest. Once someone is arrested, they take a second breath test at the police station. The results of this evidentiary test are used as evidence in the DUI case.

Breath tests are sophisticated. However, problems with the testing device or the way the test was administered can lead to incorrect results. For example, a breath test result may be incorrect if:

  • The testing device was not properly (and recently) calibrated

  • The testing device contained expired chemical solutions

  • The device is defective or broken

  • The device is contaminated by other substances

  • The breath test was not administered correctly

  • The driver had a medical condition such as diabetes or acid reflux that affected test results

Breath Test Results May Be Unusable Due to the Exclusionary Rule

Fortunately, we have certain rights in the United States, including the right to be free from unjustified traffic stops. Police must have a valid reason for pulling you over. Specifically, there must be a “reasonable suspicion” of criminal activity. For example, the police may pull someone over if they see the driver run a red light, weave in and out of lanes, or drive dangerously. However, police cannot pull someone over on a hunch, gut feeling, or because of a stereotype regarding the driver’s race, vehicle, or the neighborhood.  

The exclusionary rule prohibits the use of evidence that was obtained in violation of the U.S. Constitution. If the original police stop was not justified, the results of a breath test may be unusable in the DUI case. It is extremely difficult for a prosecutor to convict someone if there is no hard evidence of his or her intoxication.

Contact Our Rolling Meadows DUI Defense Lawyer

If you or a loved one were arrested for drunk driving, contact Chicago criminal defense attorney Kendall D. Hartsfield for help. Mr. Hartsfield can determine if problems or flaws with the traffic stop, arrest, or breath alcohol test can be used to avoid conviction.

Call Hartsfield Law at 312-345-1700 for a free consultation.



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