You can be charged with a dui
How You Can Be Charged With DUI Without a Breath Test
Most people know that a DUI charge can happen when a breath or blood test is over the legal limit of.08. But a lot of people don't realize that a DUI charge can happen even if the test is under the legal limit or if the suspect declined to take the test. How can this happen you might ask? Well it's called the "affected by" prong.
You see in a DUI case the Prosecutor has two ways at their disposal in which to a file a DUI charge. One is under the "per se" prong or in other words when the breath or blood test is over the legal limit of .08. This means that the State assumes a person is intoxicated when they are above the legal limit and it's up to the defense to prove otherwise. The other way is what I described above as the "affected by" prong or in other words the person's ability to drive was affected by alcohol and they were not necessarily over the legal limit. This is done when the Prosecutor doesn't have a blood alcohol level, or they simply don't want to charge under the "per se" prong because the alcohol level was under the legal limit.
The "affected by" prong was created as sort of a catchall for a DUI charge. You see not every DUI charge has scientific evidence. Sometimes people exercise their fifth amendment right against self-incrimination and they decline
the breath or blood test. Or in some cases for whatever reason the arresting officer chooses not to ask the driver for a sample. And in some rarer cases the driver provides a test and it is below the legal limit.
In those situations obviously the DUI charge cannot be filed under the "per se" prong because there is no alcohol level to demonstrate the driver was intoxicated. So the "affected by" prong is used to provide a definition of how the driver was intoxicated. That definition states, "A person's ability to drive is affected by alcohol and/or drugs when their ability to drive is lessened in any appreciable degree." As you can see this is very ambiguous and gives the Prosecution much leeway in how to interpret what an appreciable degree is.
Now depending on the circumstances not having a breath or blood test can be helpful in a DUI case. But nevertheless a DUI charge can be filed without evidence of what a person's blood alcohol level was. Even if the blood alcohol level was under the legal limit. To prove a DUI case under the "affected by" prong the Prosecution would more heavily rely on the observations of the driver. Including the observations of the driving, and any physical signs of impairment like slurred speech, coordination issues, bloodshot watery eyes, etc.
Matthew Leyba is one of the premiere Bellevue DUI Attorneys in Washington State. If you have been charged with a DUI don't wait contact a Bellevue DUI Attorney ASAP!