You were pulled over, asked to perform field sobriety tests, and later gave a breath sample. When you learned that your blood alcohol concentration was below 0.08%, you may have assumed that meant you could not be charged with DUI.
Then you were charged anyway.
In New Jersey, a BAC below 0.08% does not automatically rule out a DUI case. The State may still try to prove that you were under the influence of alcohol even when your reported BAC did not reach the 0.08% threshold.
If you are facing a DUI charge after testing below 0.08%, understanding what that number means and what other evidence the State may rely on can help you understand why the charge may still be pursued.
What Does the 0.08% BAC Limit Mean in New Jersey?
New Jersey's DUI law provides more than one way for the State to establish DUI.
One involves blood alcohol concentration. Operating a motor vehicle with a BAC of 0.08% or higher can provide a basis for a DUI conviction.
But the statute also prohibits operating a vehicle while under the influence of intoxicating liquor. That part of the law does not require the State to prove that your BAC reached 0.08%.
This distinction matters if your breath-test result was 0.07%, 0.06%, or another number below the statutory BAC threshold. A lower reading may be important evidence, but it does not necessarily end the State's case.
The question then becomes whether the remaining evidence is enough to prove that alcohol caused a substantial deterioration or diminution of your mental faculties or physical capabilities, affecting your judgment or control to the point that you were under the influence while operating the vehicle.
How Can the State Try to Prove DUI With a BAC Under 0.08%?
When the State cannot rely on a BAC of 0.08% or higher, police observations and other evidence surrounding your stop can become particularly important.
That evidence may include:
- How you were driving before the stop
- Whether the officer reported an odor of alcohol
- Your speech, balance, coordination, or appearance
- Statements you made about drinking
- Your performance on field sobriety tests
- Body-worn or dashboard camera footage
- Observations made by other officers or witnesses
No single observation necessarily proves that you were driving under the influence.
For example, bloodshot eyes, nervousness, or difficulty performing a roadside exercise can potentially have explanations other than alcohol impairment. Likewise, an officer's conclusion that you appeared impaired still needs to be considered alongside what the evidence actually shows.
An under-0.08 DUI case therefore often requires looking closely at the entire encounter rather than focusing on one number or one observation.
Does a BAC Below 0.08% Still Matter?
Yes.
The fact that the State may pursue a DUI case below 0.08% does not mean your lower breath-test result is meaningless.
If the result is admissible, it can be considered alongside what the officer says happened during the stop, how you performed on field sobriety tests, any available video footage, statements you made, and the other circumstances surrounding the encounter.
That distinction matters. A BAC below 0.08% does not automatically prevent the State from pursuing an observational DUI case, but the number should not simply be ignored when evaluating whether the other evidence proves that you were under the influence.
Your breath-test result is one part of the larger picture. A below-threshold result can therefore still be significant even though a BAC of 0.08% or higher is not the only way the State can establish DUI in New Jersey.
How Do Field Sobriety Tests Matter in an Under-0.08 DUI Case?
Field sobriety testing can become an important part of an under-0.08 DUI case because officers may rely on how you performed as evidence of impairment.
But a police report describing poor performance on field sobriety tests does not answer every question about what happened.
The conditions under which you performed those tests can also matter.
Was the roadway level? What were the lighting and weather conditions? Were the instructions given clearly? Did you have an injury, medical issue, footwear problem, or another circumstance that could have affected your performance? Does body-camera footage match the officer's written description?
At Davis Law Firm, we look at details like these because they can help clarify what the field sobriety testing actually shows and whether the officer's written account matches the circumstances captured during the stop.
Video can be particularly useful because it may provide a record of your speech, movements, interaction with police, and actual performance during roadside testing rather than leaving the case entirely dependent on descriptions written afterward.
Can You Be Arrested Even If the Breath Test Is Below 0.08%?
Yes.
A DUI arrest and a DUI conviction are not the same thing.
An officer may decide that there is probable cause to arrest based on observations made before a breath-test result is available. A later reading below 0.08% does not automatically change the observations or other circumstances the officer relied on when making the arrest.
But an arrest also does not establish guilt.
To obtain a conviction, the State still has to prove the DUI charge under the applicable legal standard. When the BAC is below 0.08%, the evidence supporting an allegation of actual impairment can therefore become a central part of the case.
What Should Be Reviewed in an Under-0.08 DUI Case?
If you were charged with DUI despite a BAC below 0.08%, your breath-test result should not be viewed in isolation.
Reviewing your case may involve looking closely at the traffic stop from beginning to end, including:
- Why police stopped your vehicle
- What the officer says they observed
- What you said during the encounter
- How your field sobriety tests were administered
- Available body-camera or dashboard-camera footage
- The breath-testing records and reported result
- Whether the State's evidence supports its claim that you were impaired
The specific facts matter because two people with the same reported BAC can have very different cases once the surrounding circumstances and evidence are examined.
Charged With DUI in New Jersey After Testing Under 0.08%?
Seeing a breath-test result below 0.08% may leave you wondering why you are still facing a DUI charge.
The answer is that New Jersey law does not limit DUI cases to drivers whose BAC reaches that number. The State may instead try to prove that you were under the influence based on observations and other evidence.
That does not mean the State has proven the charge.
If you were arrested for DUI in Hamilton, Trenton, Mercer County, or elsewhere in New Jersey after testing below 0.08%, the Trenton DWI lawyers at Davis Law Firm can review the evidence, explain what the State would need to establish, and help you understand the issues that may matter in your case. Contact our office to discuss your situation.
Disclaimer: Results may vary depending on your particular facts and legal circumstances. The articles on this blog are for informational purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.
