Can I be Convicted of a DUI if I Blow Less than .08?

Getting caught driving under the influence in Illinois has serious ramifications. Getting caught more than once could result in a felony conviction, possible jail or prison time and even permanent revocation of your driver’s license.

The average man weighing about 170 pounds approaches the legal threshold for being intoxicated (0.08 percent) after about four drinks in one hour, according to the Illinois Secretary of State. For women weighing about 140 pounds, the limit is about three drinks. See for more information or click on this link for the DUI handbook;

That said, every person metabolizes or process alcohol differently. As such, the optimal plan is to have a sober person drink if you have been drinking at all.


In People v. Phillips, 2015 IL App (1st) 131147, the Defendant admitted to drinking wine and smoking a small amount of cannabis, blew a .059 on his breathylizer test. The trial court found him guilty of driving under the influence of alcohol.

The Defendant, Phillips, appealed the trial court’s decision to find him guilty of driving under the influence of alcohol, arguing that the fact his breathylizer result was .059 created an inference of a lack of impairment.

The appellate court upheld the trial court’s decision to find Phillips guilty of driving under the influence of alcohol in spite of his breathylizer result of .059. The appellate court held that “the State presented sufficient evidence from a credible officer that the defendant emitted a strong odor of alcohol, exhibited slightly slurred speech, had bloodshot eyes, and performed poorly on the field sobriety tests.” The court specifically rejected Phillip’s argument that a blood alcohol concentration below the legal limit infers a lack of impairment.

The Illinois Supreme Court in People v. Janik, 127 Ill. 2d 390 (1989) held that a person can be convicted of a DUI based solely on the testimony of the arresting officer so long as that officer is determined by the trial court to be credible.

In cases where the BAC is less than .08 but greater than .05 the key issues at any trial will be what other factors were present that would indicate a Defendant is impaired. Such factors typically are things such as how a defendant drove, their ability to speak and think clearly, the ability to stand and balance, odor of an alcoholic beverage on their breath, and how they performed on field sobriety tests if they agreed to perform them.

Due to the fact that the penalties for DUI escalate dramatically with subsequent violations of the law, it is highly recommended you contact an experienced attorney who can protect you and your rights, explain the court process, explain collateral consequences and try and achieve a result with the least possible punishment, or no punishment at all if you were wrongly accused. Because of the strong possibility of incarceration and unknown collateral consequences it is highly recommended that you consult with an attorney. Miller Law Offices has a proven track record of success in DUI cases both at trial and in negotiations. When there is so much on the line, do not wait to get the protection you deserve. Call Miller Law Offices today!

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