This weekend I received an inquiry from someone who had been convicted after the judge instructed the jury it could find him guilty of DUI even if it did not find he had a breath alcohol level above .08%. He complained that by instructing the jury on the alternate theory – that his driving pattern established he was operating a motor vehicle while under the influence of drugs or alcohol – the Court had insured he would lose! Had it?
There are two ways to convict a person of DUI – either proof beyond a reasonable doubt that the defendant’s blood alcohol concentration was higher than .08%, or that there is other circumstantial proof he was operating his motor vehicle under the influence. I have also had the experience that the State argues both, and the jury was likewise able to convict without finding a BAC above .08%. As a practical matter, cases with this kind of ambiguity often produce a settlement for a lesser crime – like inattentive driving.
This possibility is why I have told people that the field sobriety tests can seal their fate – even if they are not under the influence. More on those "tests" in another post.