Can I Be Convicted of DUI If My BAC Was Less than 0.08?

Legally reviewed by:
Rubin, Glickman, Steinberg & Gifford P.C.
January 21, 2021

In nearly every state, the basic DUI laws are the same: drivers over the age of 21 are considered legally drunk when their blood alcohol level is 0.08 percent or more. After a conviction, first-time offenders will likely undergo several months of probation, pay a hefty fine, attend an alcohol highway safety school, and be forced to comply with all drug and alcohol treatment requirements imposed by the sentencing judge. A second or third offense may involve additional penalties, even imprisonment. What you may not know, however, is that it’s actually possible to be convicted of a Pennsylvania DUI and face these same penalties with a BAC that is less than 0.08 percent.

Because modern technology has given police officers the ability to measure BAC via breathalyzers and other devices, many individuals mistakenly assume that BAC levels are the end-all-be-all of DUI law. However, unbeknownst to many Pennsylvanians, the law dictates that you can still be convicted of a DUI even if you had a BAC below 0.08 percent.

Pennsylvania DUI General Impairment Provisions

Section 3802 of the Pennsylvania Vehicle Code outlines “general impairment” in the language that most people think of with regard to DUI:

“An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual’s blood or breath is at least 0.08% but less than 0.10% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.”

A different part of the code breaks down another way in which an individual can be arrested for driving under the influence that includes no reference to BAC at all:

“An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.”

In this case, if you’ve consumed any alcohol at all and are endangering others on the road, you can be arrested and charged with DUI no matter your BAC level.

How You Can Be Prosecuted with a BAC Less Than 0.08 Percent

Convicting an individual who’s been charged with DUI based on a BAC less than 0.08 percent is perhaps slightly more difficult for the prosecution. This is because instead of utilizing hard data as evidence, the prosecution must instead rely on witness identification and circumstantial evidence. This type of testimony consists of facts that don’t actually prove the crime but can be used to infer that a crime occurred. When enough circumstantial evidence is present, you can be convicted. Understanding every way in which the prosecution can prove your DUI case will be instrumental if you wish to evade the charge.

Defense Strategies If You’ve Been Arrested for DUI with a BAC Under 0.08 Percent

When defending a DUI case, it may be possible to attack a prosecutor’s reliance on circumstantial evidence, especially where the evidence is weak. It’s important that you and your attorney discuss the types of evidence that may be used against you to infer that you were driving under the influence. Remember that criminal charges must be proven beyond a reasonable doubt for there to be a conviction. This means that the arresting officer and prosecutors must demonstrate that:

  • You were in physical control of the vehicle upon a highway or traffic way
  • You had imbibed alcohol
  • You were incapable of driving safely
  • The alcohol was the reason for your incapability to drive safely

Examples of the evidence that may be brought forth against you in DUI cases include your driving conduct, dashcam footage, injuries, damage to the vehicle, field sobriety tests, and the officer’s observations of your physical condition. If this kind of evidence is brought up in court, the defense can counter this evidence and show that your poor performance or objective symptoms of intoxication may have been caused by a health condition or other factors unrelated to impaired driving. An expert DUI defense lawyer may be able to properly protect you against these allegations. 

Contact an Experienced DUI Defense Lawyer in Montgomery County

If you’ve been arrested for driving under the influence, it’s important that you act quickly and contact an attorney immediately following your arrest. The Southeastern Pennsylvania DUI attorneys at Rubin, Glickman, Steinberg & Gifford P.C understand how challenging this time can be for you, which is why we’re dedicated to fighting for your rights and protecting your interests throughout the legal process. Our highly trusted and skilled legal team understands the ins and outs of Montgomery County DUI defense law and will be with you every step of the way.

For nearly 68 years, the attorneys at Rubin, Glickman, Steinberg & Gifford have been serving the legal needs of clients in Montgomery County, Bucks County, Lehigh County, Chester County, Delaware County, and Philadelphia. We’ve earned the trust and respect of clients facing a wide range of legal problems, including DUI defense law. Our attorneys are ready to protect you and guard your rights. Give us a call at (215) 822-7575 or complete our online contact form today.

Legally reviewed by:
Rubin, Glickman, Steinberg & Gifford P.C.
Pennsylvania Attorney's
January 21, 2021
Established in 1952 by Irwin S. Rubin, Rubin, Glickman, Steinberg & Gifford P.C. boasts over 65 years of experience serving clients throughout Pennsylvania. Renowned for its commitment to ethical representation, the firm has garnered prestigious accolades, including being named the "Best Law Firm" for its outstanding legal defense work by U.S. News & World Report. Their team of seasoned attorneys, recognized as Pennsylvania Super Lawyers and Rising Stars, brings unparalleled expertise to a wide range of legal matters, ensuring exceptional representation for individuals, families, businesses, and organizations.