Rising Blood-Alcohol: This is common: You’re at the bar and down a shot at last call. You feel fine, so you drive home. A few miles down the road you’re stopped for a tail light and the officer smells the fresh drink on your breath. 30 minutes and a series of tests later you test at a .08. Are you guilty of DWI?DUI?
No. Driving While Intoxicated means you were Intoxicated WHILE you were driving. If your BAC was .07 while you were driving, and the rose to above a .08 during the officer’s 30 minute investigation, then you are not guilty of DWI.
Improper Investigation: You may have seen this on t.v. An officer thinks he smells alcohol, so he waggles his finger in front of somebody’s face. Then he gives some confusing instructions and tells them to perform some test that most people couldn’t do sober. Finally, he sticks an old machine up to their mouth and tells them to blow. They test over .08. Are they guilty of DWI?
No. The Field Sobriety Tests must be performed in a scientifically valid manner. An officer cannot just go through the motions. Further, the breath test instrument must be properly maintained and calibrated AND the officer must properly operate the instrument to get a valid test.