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Can you get an OUI under 0.08% BAC?

The first time you heard about the legal limit of 0.08% for blood alcohol concentration was from your parents. They warned you, when you started driver's ed, that you should never drink and drive. If your BAC went over 0.08%, they told you, you could get a drunk driving charge or OUI.

You heard it again in your driver's ed classes. Then you heard it repeatedly from your instructor. Then your friends mentioned it as they started driving.

In short, that number was everywhere. You felt like you knew that it was the cutoff for an OUI. If you broke the 0.08% limit, you would go to jail. You would get fined. You would lose your license.

0.08% isn't a cutoff

All of that can happen, but there is still a serious problem with looking at 0.08% as a cutoff. That makes it seem like a "limit" that it's only illegal to break. It makes you feel like having a 0.07% BAC is legal and won't be problematic if you get pulled over.

You see drivers fall into this trap all of the time. They just assume they have to blow a low enough number on a breath test to go home.

But that's not really the point of OUI laws. The goal is to prevent impaired driving. The amount of alcohol does not always determine if you were impaired or not. Even under the legal limit, if it did impair your ability to drive in the eyes of the law, you can still get an OUI.

Judging impairment

The real difference in a drunk driving charge while under 0.08% is just that the police now have to judge for themselves if you suffer from impairment. They have to make that call on the scene. If they do opt to arrest you, then they need to demonstrate why they did so after the fact.

In short, they need to show that the alcohol did impair your ability to drive. At that lower level, it may not have, but the police had a reason to think that it did.

If you go over 0.08%, then they no longer have to prove impairment. They still have to show why they pulled you over and why they gave you the breath test, but the results of the test show that the alcohol did -- legally speaking -- impair your ability to drive.

Your rights

That is a crucial distinction, and it changes the way that you approach the case after the arrest. Make sure you are well aware of all of the legal options you have in Massachusetts.

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