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I blew below .08, can I be arrested for DWI?

Yes.

Driving While Intoxicated in Louisiana prohibits the 

operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when any of the following conditions exist:

  1. The operator is under the influence of alcoholic beverages.

  2. The operator’s blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood.

  3. The operator is under the influence of any controlled dangerous substances listed in Schedule I, II, III, IV, or V as set forth in R.S. 40:964.

  4. (i) The operator is under the influence of a combination of alcohol and one or more drugs that are not controlled dangerous substances and that are legally obtainable with or without a prescription.

  5. (i) The operator is under the influence of one or more drugs that are not controlled dangerous substances and that are legally obtainable with or without a prescription.

La. R.S. 14:98A(1). Further, if you are under the age of 21, it is illegal to operate a motor vehicle with a BAC of .02. La. R.S. 14:98.6.

What all of the above means is that, in order to prove a person is operating a vehicle while intoxicated, the State of Louisiana must prove: (1) that the person was operating a motor vehicle and (2) that the person was “under the influence” of alcoholic beverages. This can be done in a number of ways: via presumption if the driver submits to a breath test, blood test, or urine test, and the results show a BAC of .08 or above; or if the driver performs poorly on Standardized Field Sobriety Tests (SFSTs) and sufficient other evidence shows that the driver is under the influence of alcohol, controlled dangerous substances, or other drugs.

This New Year’s Eve, if you are going to celebrate, please drink responsibly and arrange for alternate transportation.

Happy New Year from Gilmer & Giglio!