A San Diego police officer was recently pulled over on suspicion of drunk driving. She was nabbed by the California Highway Patrol known aka CHIPS (recall the old tv program with Eric Estrada that is known by the same name- and the same name as the defendant). Evidently, she blew under .08 and was given a ticket for driving under the influence and was not taken to jail. Probably best for her that she was not jailed as her fellow inmates would probably be less then welcoming to her.
The important thing about this arrest is what her BAC (blood alcohol content) actually was at the time of the stop. Many DUI/DWI (driving while impaired) clients come into our office wondering how and why they got arrested for blowing a .06, .05 or .04. The Maryland DUI law as it is written says .08 is the legal limit and the street signs on the beltways say “over .08, under arrest.” Thus, why the arrest when under .08? The answer is the pesky charge of Driving While Impaired 21-902 (b) which is different then Driving Under the influence 21-902(a) in Maryland.
Driving While Impaired is basically a lesser included alcohol ticket for those that do not appear to be drunk yet the officer smells alcohol and has a desire to meet his monthly quota for alcohol related arrests. In other words, if the cop smells alcohol on your breath that is the first problem, despite the fact that you are allowed to consume alcohol and operate a motor vehicle in Maryland and all other states. Then whatever the cop pulls your car over for is automatically indicator 2; thus if you were speeding, that’s an indicator of impairment, if you were driving too slow, then that’s the indicator, if you made a turn without your blinker on, then that’s the indicator of your impairment. If you were driving without your seat belt on, well there you go, that’s a definite indicator that you were impaired along with the odor of alcohol on your breath. [Side note: the legislature changed the law in Maryland and failure to have your seatbelt on as well as texting are now primary offenses which the cops can pull you over directly for that particular offense.]
So after the initial stop of the vehicle, the police ask you to get out of your vehicle and “request” that you perform field tests and when you fail to perform them adequately in the dark, on the side of the road that becomes indicator 3. So now you have 3 strikes against you and the cops are good to go for an arrest. Then you are taken back to the station for the all important blow only to be seriously disappointed when your BAC comes back at say .05 which is presumed not under the influence. Unfortunately, the cops don’t much care, the ticket is written and now you must retain competent DUI counsel to defend your in court.
Take home message: Driving While Impaired is a real charge which is not advertised but exists in every state. The .08 BAC number is a fallacy and is not required to obtain a conviction. Be advised- you heard it here first.