Two Beers, a Cough Syrup, and a 0.07
At 11:40 p.m. an officer stops a 34-year-old driver who drifted over the fog line twice. The driver says he had two 12-ounce beers between 8:00 and 9:30 p.m., then at 10:00 took a dose of prescription cough syrup labeled "may cause drowsiness - avoid driving or operating machinery" and a muscle relaxant prescribed for his back. His eyes are bloodshot, his speech is slow, and he sways during the walk-and-turn. The preliminary breath test reads 0.07. He is 34, not under 21. At the station he is asked for an evidentiary breath sample and says, "I'd rather not - the roadside test already says I'm under the limit."
1. Is the 0.07 reading a defense? What would the State have to prove?
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No, it is not a defense.
There are two distinct ways to commit DUI:
- Per se - operating with a blood or breath alcohol concentration at or above the legal limit (0.08 for a driver 21 or older). The number alone convicts.
- Impairment - operating while alcohol, drugs, or a combination of them renders the driver incapable of driving safely. No threshold number is required.
A 0.07 does not create a safe harbor. It removes the per se shortcut, and the State must then prove impairment from the totality of the evidence: the two fog-line excursions, bloodshot eyes, slow speech, the sway on the walk-and-turn, and the admitted use of a sedating cough syrup plus a muscle relaxant. Alcohol and central-nervous-system depressants compound each other - the combination can impair far more than either would alone, at a BAC that looks modest.
Prescription status is irrelevant to the charge. A lawful prescription with a drowsiness warning is a warning to the patient, not a license to drive.
2. What are the consequences if he refuses the evidentiary breath test, and does refusal protect him?
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Refusal is usually the worst of the available choices.
- Implied consent. By driving on the state's roads, a licensed driver has already consented to evidentiary testing after a lawful arrest. Refusing triggers an administrative license suspension that runs on its own track, separate from the criminal case - on the order of a year for a first refusal, longer for repeat refusals, and it can apply even if he is never convicted of DUI.
- Refusal is evidence. The prosecutor can put the refusal in front of a jury as consciousness of guilt.
- It does not stop the test. The officer can seek a search warrant and take a blood sample over the driver's objection; refusal simply adds delay and paperwork on the way to the same result.
What refusal buys is nothing; what it costs is a license suspension stacked on top of whatever the criminal case produces. His stated reason - "the test says I'm under the limit" - misunderstands the law: below 0.08, the case is built on impairment, and a clean evidentiary number would have been his best piece of evidence. He should have taken the test and argued the number at trial.
3. Suppose the driver were 19 instead of 34. How would the analysis change?
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It would get considerably worse for him, in two ways.
1. A lower threshold applies. Drivers under 21 are subject to a zero-tolerance standard: operating with any measurable alcohol - commonly 0.02 or above - is itself a violation, with its own penalties and license consequences. A 0.07 that is merely below the adult per se limit would be well over the under-21 limit and would establish the violation by the number alone.
2. The impairment path remains fully available. The under-21 threshold is an additional route to liability, not a substitute for the adult rules; the driving behavior, the field-sobriety observations, and the drug combination would still support an impairment case.
What would not change: the implied consent consequence. Refusing the evidentiary test would still produce an administrative suspension, and the officer could still obtain a warrant for blood. Age changes the threshold, not the reasoning about impairment, drugs, and refusal.