March 25th, 2014 by Attorney Dan Carman
Yes, you can! And it does happen. However, if your level registers lower than 0.05% on a breath test, it is presumed that you are not under the influence of alcohol. If your BAC is 0.08% or higher, you are presumed to be under the influence of alcohol. However, if your BAC is between 0.05% and 0.079%, it is not presumed that you either were or were not under the influence of alcohol, but that level could be evidence used against you, along with other well-established signs of intoxication, in determining your ultimate guilt or innocence.
Despite these figures, an officer could still charge you with a DUI if he or she has other competent evidence suggesting you were intoxicated. If an officer reasonably suspects you are intoxicated, he or she could ask you to perform several field sobriety procedures, such as the Walk and Turn, One-Leg Stand, and the Horizontal Gaze Nystagmus, among others. An officer will also be looking for evidence of slurred speech, and bloodshot or watery eyes (although such observations are highly subjective).
Keep in mind that by the time you have been taken to the detention center or police station and submitted to the breath test on the Intoxilyzer 5000EN (not to be confused with the Preliminary Breath Test, which is administered using a handheld device, often at the scene of the arrest), you have already been arrested (presumably after the police officer believed he or she had probable cause to do so), and “taken in,” so the officer has very little incentive not to charge you, regardless of your BAC as shown by the breath test (KRS 189.520).
If you (or a loved one) have been charged with DUI in Kentucky or in the Lexington area in particular, call my office at (859) 838-1415 for a free consultation.