Yes. Where a DWI breath test does not show intoxication (i.e., it shows .00, .02, .06, etc.), it is often the case that the prosecution will still proceed under the theory that intoxication was present and caused by a drug, a controlled substance, or a combination of alcohol with the drug or controlled substance.

If the prosecution can show a loss of mental or physical faculties, then a conviction can occur even if a BAC is less than .08. This same logic applies to driver’s license suspension.

DWI Breath Test and Time

Many variables can affect the believability of a BAC result – for example, the time of drinking, the time of driving, the time of testing, the number of drinks consumed, the type of alcoholic beverage consumed, whether or not food was consumed, the weight of the person drinking, etc. Any of these items may render a BAC result unreliable.


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