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Can You Get a DWI With a BAC Under the Legal Alcohol Limit in MN?

You’re at a five-star restaurant for with co-workers and politely decline a second glass of wine when the waiter stops by with a dessert tray. You enjoyed the Cabernet Sauvignon and wouldn’t mind a little more – but you have to drive home. A half hour later, you spot a flash of red and blue lights in your rearview mirror. A police officer pulls you over, asks if you’ve been drinking and orders you out of the car. You answer honestly, feeling fear rise in your throat. Are you under the legal alcohol limit in MN?

You only had one drink. You were doing the right thing –  weren’t you?

If you were cited for a DWI in Minnesota and blew under .08, contact the criminal defense law firm of Gerald Miller, P.A. We handle all kinds of cases, but DWI law is our focus. With a BAC under .08, you may be able to get your charges reduced or dismissed. Give us a call at 612-405-5522 to schedule a free case consultation with one of our experienced Minneapolis DWI lawyers. We’re here 24 hours a day, 7 days a week to fight for your rights and bring you the best outcome possible.

Drinking and Driving Stats

Every year, the Centers for Disease Control and Prevention asks Americans the same question, “During the past 30 days, how many times have you driven when you’ve perhaps had too much to drink?”

The results are eye-opening. The CDC found that:

  • About 111 million people in 2014 alone reported that they had gotten behind the wheel after drinking too much.
  • In 2012, about 121 million people admitted they had been a drunk driver at least once that year.
  • In 2006, the numbers reached a 20-year high, with 161 million people admitting to drunk driving.

An average of 28 people in the United States die in crashes that involve an alcohol-impaired driver, the CDC reports. That is one death every 51 minutes. The federal agency estimates that the annual cost of alcohol-related crashes totals more than $44 billion.

In 2015, nearly 1.1 million drivers were arrested for driving under the influence of alcohol or narcotics, according to the CDC.  That’s only a person of the portion of those who reported they had driven after drinking alcohol.

Despite public awareness campaigns, stiffer DWI penalties and the emergence of rideshare programs like Lyft and Uber, it’s clear that drunk driving continues to be a problem in the United States. It can be especially prevalent during the holiday season, when many people are out eating, drinking and being merry.

But what about the people who are following the law, whether it’s the holidays or not? The men and women who only have a drink or two and drive home, believing they aren’t endangering themselves or anyone else? If they were given a breathalyzer test, they’d fall well under the legal limit of 0.08 percent in Minnesota and other states.

Such motorists could still get arrested for driving while impaired.

It’s strange but true. In Minnesota, a motorist can be arrested and charged with driving while impaired even if he or she thought she was legally abiding by the law and has a blood alcohol content that is lower than the legal limit of 0.08 percent and lower than 0 .04 percent if driving a commercial van or truck.

In other words, a man or woman who has even one drink and then drives home can get in just as much trouble as a person who drinks to excess, is pulled over and charged with a DWI or DUI.

How is this possible? It’s how the law is written – and the authority it gives police officers to make a judgement call during a traffic stop.

Any law enforcement official in the state of Minnesota can arrest someone for a DWI or DUI if he or she seems visibly impaired. Once tested, a man’s blood alcohol level can be a as low as 0.06 to face a DWI arrest. It’s even lower for a woman, at 0.04 percent.

Other Ways to Establish Intoxication in Minneapolis and MN

The important thing to remember about a DWI case in Minnesota is that the state has multiple options for proving guilt. The state’s DWI statute is found at Minnesota Statutes Section 169A.20. According to the statute there are seven ways the state can make their case that you were driving while impaired, and only a few of those options involve a specific threshold for your blood alcohol content.

The person is under the influence of alcohol

The first option under this statute is the most common option used by prosecutors in cases where a driver’s blood alcohol content is below .08. In fact, it is the most common option in cases where the driver refuses to submit to a chemical test at all.

Under this prong of the statute, the state must make the case that you are under the influence of alcohol. Whether or not you are under the influence is a subjective statute that is not tied to your blood alcohol content. Instead, the state must use other evidence to show that you were under the influence of alcohol. This could include evidence including failed field sobriety tests, an admission of drinking alcohol, or erratic driving.

The person is under the influence of a controlled substance

Another option available to the prosecution is proving that a driver is under the influence of a controlled substance. This method does not require the state to rely on a driver’s blood alcohol content, as it is instead related to subjective evidence that they are under the influence of controlled substances. Much like the second paragraph, this prong of the DWI statute could require subjective signs of intoxication.

The person is under the influence of an intoxicating substance

The third prong of the DWI statute involves intoxication from a substance that is neither an alcoholic beverage or a controlled substance. The caveat is that the accused must have known or had reason to know that the substance had the capacity to cause impairment. Whether a person had reason to know that a substance is intoxicating is a subjective question and could make or a viable defense strategy.

The person is under the influence of a combination of two or more substances

In many situations, drivers are arrested under suspicion of intoxication from a series of substances. This could include a mixture of alcohol, controlled substances, or other intoxicating substances. In these cases, a DWI conviction is possible even if you have a blood alcohol content below .08. This is true even if the blood alcohol content is close to zero, because alcohol can compound the intoxicating effects of other substances, specifically prescription medication.

The person’s BAC was .08 or more

This option is one of only two ways the state could secure a guilty plea based only on a blood alcohol content of .08 or more. Under this part of the statute, the state could secure a conviction by showing that you measured a blood alcohol content within two hours of driving, operating, or being in physical control of the motor vehicle.

Your BAC is central to securing a conviction under this prong of the statute. However, the state will typically rely on other options in cases where your blood alcohol content is below .08.

The person’s BAC was .04 or more

The threshold for a DWI conviction is lower than .08 under specific situations. Specifically, drivers with a commercial license are held to a standard of .04 or above. This is true whether the driver was operating a commercial vehicle or driving their own passenger car. Not only is it possible to establish a case for DWI with a BAC under .08 for commercial drivers, but a score of .04 or above is evidence of intoxication.

The person’s body contains any amount of controlled substance

The final option available to the prosecution involves any registered amount of certain controlled substances in the body. If a blood, breath, or urine test reflects that a person has a Schedule I or Schedule II controlled substance in their system, that is evidence enough to secure a DWI conviction. There is an important exception, as evidence of marijuana or tetrahydrocannabinols do not qualify under the statute.

What Can You Do If You’re Charged With DWI but Were Under the Legal Alcohol Limit in MN? 

Nobody should drive drunk. But the law is unfair to the people who follow it, believing that drinking one beer or one glass of wine would prevent an arrest and allow them to still drive safely. What’s more, there is no scientific evidence or statistical data that supports claims that most people are too impaired to operate a car, truck or van at a blood alcohol level lower than 0.08.

Minnesota’s DWI laws suggest that it’s illegal to drive a car after even one drink. Even so, that’s not the purpose of such DWI mandates. Allowing an officer to decide if someone is impaired and cite him or her for a DWI even though he or she is under the legal limit will only punish responsible people who might have a glass of wine or a beer with dinner before driving home.

Another Scenario of DWI Under the Legal Alcohol Limit in MN

In one scenario, a driver with a blood alcohol level of 0.06 can be found guilty of a DWI if police officer or other law enforcement officer testifies that he or she observed a motorist’s vehicle swerving. The officer might also decide that the driver seemed impaired, as in he or she had slurred speech or had trouble answering questions during a traffic stop.

Getting pulled over is nerve-wracking, whether you have been drinking or not. Aside from the fines and other expenses, a driving under the influence citation is frightening and humiliating. You also could lose your driving privileges. A DWI can remain on your criminal record for years and is likely to raise your insurance rates.

DWI Levels and Laws in Other Countries

A driving under the influence citation can permanently change your life – all when you thought you were being a safe, considerate and law-abiding motorist. In some ways, Minnesota law is similar to other countries, many who have strict mandates when it comes to driving under the influence. According to ABC News, Brazil and Russia have zero tolerance laws on their books. A driver in those countries, therefore, is violating the law if he or she has even sipped a small glass of beer. Meanwhile, Sweden and China set their limit at 0.02 percent, and Japan outlaws drivers with a 0.03 percent blood alcohol level.

Most countries fall between the United States and Brazil, setting the limit at around 0.05 percent, ABC reported. However, earlier this year, Utah become the first state to lower the DWI legal limit to 0.05 percent. Other states – including Minnesota – are considering lowering their official DWI limits as well.

How Alcohol Affects Driving Statistics

It appears that police and other officials fear crash statistics like those released by researchers in San Diego, who have found that accidents are 36.6 percent worse when a motorist has even a trace amount of alcohol in his or her system.

But the study has also found an obvious fact: the more alcohol a person has in his or her system, the more likely a crash will occur. According to the ABC News report, the scientists’ findings showed:

  • A driver’s blood alcohol content correlated with how fast her or she was going.
  • The greater the driver’s alcohol concentration, the more likely he or she was not wearing a seatbelt.
  • The more alcohol a person has in his or her system, the more likely he or she was to hit another car.

Even so, it’s possible that a person can have one beer or glass of wine with dinner and drive home safely. It’s a frightening scenario.

You aren’t alone, and you have rights. The highly-skilled team of experts at Gerald Miller DWI, DUI and Criminal Defense can provide the guidance you need to get through a driving under the influence citation. We will work to see the citation reduced or even dismissed if you were under the state’s legal limit of 0.08 percent.

A DWI Defense Lawyer from Gerald Miller Can Help

If you have been arrested and charged with a DWI offense in Minnesota but were under the legal alcohol limit in MN, you should immediately contact one of our experienced DWI lawyers. The penalties associated with a DWI conviction can be serious and have long-lasting consequences. At Gerald Miller, P.A., our Minnesota DWI attorneys will always work hard to protect your legal rights and ensure that you obtain the best possible results in your case. We are available 24 hours a day, seven days a week.

Call us today at (612) 440-4610 and visit geraldmillerlawyer.com to schedule your free and confidential consultation. We’re here to help you through this.


Originally published on February 4, 2020 and updated September 23, 2021.

About the author

Gerald Miller

Gerald Miller is a top-notch and experienced DWI/DUI lawyer at Gerald Miller P.A. in Minneapolis, MN. He has more than 35 years of experience in Criminal Defense practice. He has also been a mentor to numerous DUI/DWI defense attorneys.

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