It is possible to avoid a DWI conviction even if the breath test shows you were over the legal limits for several reasons. First off, at trial, we can show that that breath test is inaccurate and the jury shouldn’t believe it. Secondly, not only do they have to prove that you’re over the limit by the test, say if the test shows that you’re 0.09, that would be over the 0.08 but then they have to convince the jury that that shows that you were greater than 0.08 at the time of driving; and the time of the test might be an hour after the time you were driving. So the state may have some expert who will do what they will call extrapolation; and what that really translates to is making a wild guess of what your BAC or your alcohol concentration was at the time of driving. But there’s a lot of scientists who say that that extrapolation is just unacceptable. They say forensically unacceptable.
That means that it shouldn’t be used as evidence, it shouldn’t be trusted or even giving proof beyond a reasonable doubt to a journey. So, yes, even if your test is over 0.08 you can still avoid conviction.
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