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OWI, DUI, Breathalyzer

OWI Conviction Reversed for Driver with ACE Below 0.08

An Indiana man’s OWI conviction was reversed because the judge improperly instructed the jury to ignore the fact that he blew 0.069 on a breath test. Many people are shocked to learn that prosecutors can charge people with operating while intoxicated when a person has a breath best below 0.08. While a 0.08 alcohol concentration equivalent (“ACE”) is the legal limit for operating a vehicle, a person can still be convicted for operating while intoxicated if the State proves beyond a reasonable doubt that the person was intoxicated. Under the OWI statute, “intoxicated” means under the influence of alcohol such that a person is impaired and has a loss of normal control of the person’s faculties.
The man was pulled over for having a headlight out. The officer smelled alcohol and the driver admitted to having three alcoholic drinks. The driver then submitted to three standard field sobriety tests, all of which the officer scored as fail. A breath test was then administered at the jail, and the driver had an ACE of 0.069. He was placed under arrest.  

glass with alcohol, dui and keys on a tabletopAt trial, defense counsel argued to the jury that the driver was not drunk and was below 0.08. After the prosecutor objected, the judge instructed the jury that the breath test was not a part of this case and to not put any weight into it. The man was convicted of operating while intoxicated. The Court of Appeals reversed the conviction finding that the trial court abused its discretion in advising the jury to ignore the 0.069 breath test. The Court held that breath test results are relevant to the issue of intoxication, whether the test is above or below 0.08.

This case is good news for defendants in OWI cases. Overzealous prosecutors sometimes file OWI charges against people who have a breath test below 0.08. It’s crucial for jurors to know the breath test result in such cases. If breath test results that are above the legal limit are admissible, then the same must be true for chemical tests below 0.08. Prosecutors can’t have it both ways. This Indiana Court of Appeals case will be helpful to defense attorneys in low ACE cases.