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Can You Get a DUI if You Are Under .08?

The short answer: Yes. In Indiana, there are two separate charges related to DUI. The first is Operating While Intoxicated or OVWI. These types of cases are commonly referred to as "intoxication offenses." The second is Operating with a BAC over .08, which is general known as a "per se offense."

The charge of Operating with a BAC over .08 only requires that the state prove your BAC (blood alcohol concentration) was at least .08 or more when you were driving your vehicle. On the other hand, the charge of Operating While Intoxicated requires that some sort of impairment be shown. While a person who tests under .08 clearly cannot be charged with Operating with a BAC over .08, Operating While Intoxicated is still a possibility.

Indiana Code § 9-13-2-86 states that someone is intoxicated when their actions, thoughts, or the normal control of their "faculties" are impaired by their use of alcohol or drugs. Therefore, it is possible, although rare, for someone to test under .08 and still be intoxicated.

In these cases, the court or jury can look at things like the person's driving behavior and demeanor to determine whether they were intoxicated. If a driver tests at a .07, but was pulled over for veering off the road, smelled strongly of alcohol, vomited, and was unable to stand up on their own, then they could still be charged with and possibly convicted of Operating While Intoxicated.

In these types of cases, it is extremely important that an accused quickly obtain experienced DUI defense counsel. All of the attorneys at Keffer Barnhart LLP have experience handling DUI cases. Bradley Keffer was formerly the Marion County (Indianapolis) Fatal Alcohol Crash Team Prosecutor and is currently a member of the National College of DUI Defense (NCDD), Scott Barnhart has been recognized by the NAFDD as one of the Top 100 DUI Defense Attorneys in Indiana, and Chris Devlin was formerly a member of the Marion County Prosecutor's Office DUI Prosecution Unit.

If you have been charged with a DUI, do not delay in seeking experienced DUI defense counsel and contact Keffer Barnhart LLP for a free consultation at 1-800-NOT GUILTY or (317) 857-0160.