DUI limit really more of a guideline for state troopers

On a Friday night in the Ballard neighborhood of Seattle, Trooper Tony Brock pulls a woman over for driving without headlights. As he approaches the vehicle, he detects a strong smell of alcohol.

The woman fumbles for her driver’s license and struggles to unbuckle her seatbelt when Trooper Brock asks her to exit the truck.

“How much have you had to drink tonight?”

“Six beers,” says the woman.

“Do you feel like you’re OK to drive?”

“I do,” she responds, telling him her last drink was 45 minutes ago.

Trooper Brock proceeds to put the woman through a series of field sobriety tests.

He moves his pointer finger side-to-side as she attempts to follow it with her eyes. He watches as she takes nine steps, carefully putting one foot in front of the other while counting the steps out loud. He asks her to recite her alphabet from the letter “b” to the letter “n,” then asks her to count from 58 to 72.

Without blowing into a breathalyzer to determine her blood alcohol level, the woman is arrested for driving under the influence.

“Even if she was not over a .08, it’s obvious she’s affected by the alcohol she was drinking,” said Trooper Brock. “Even if I took her back to the office and she blew a .07, she would still be being booked into the King County Jail for DUI.”

While roadways across Washington state are spotted with signs that remind drivers of the “legal limit,” and warn “over the limit, under arrest,” driving under the influence can often be a crime of opinion for troopers who believe you are too impaired to be behind the wheel.

“I [couldn’t] care less about what they blow; if they’re below the legal limit, at the legal limit or five times the legal limit,” said Trooper Brock, who is member of the Washington State Patrol’s Target Zero Team. Their goal is to reduce deaths on the roadway.

“I don’t worry about what’s going to happen six months or a year down the road in court,” he said. “I know when I go home every single shift that if I took someone off the road, I’m 100 percent positive they were not supposed to be driving a car.”

Under state law, someone can be arrested for DUI if a trooper or officer determines they were “affected to an appreciable degree” by alcohol or drugs.

“We do get clients that come into this office that are dumfounded, for lack of a better term, as to why they’re even sitting in our office if their blood alcohol level was below the legal limit,” said William Kirk, a DUI defense attorney with Cowan Kirk Gaston.

He said the government has contributed to confusion with signs and slogans reinforcing the “legal limit.”

In cases where a defendant’s BAC was under the legal limit, the prosecution must rely on the testimony of the trooper or officer who made the arrest.

“The evidence that a person was impaired to an ‘appreciable degree’ will be based upon the trooper’s opinion, and therefore it becomes a crime of opinion and the weight that a jury attaches to that opinion is critical to whether or not a conviction is obtained,” said Kirk, who has never had a client convicted of DUI with a BAC under .08.

“I personally have never had that happen,” he said. “But I have heard of it happening and I have heard of some very talented DUI lawyers having it happen to them, so it is possible.”

While troopers like Tony Brock have the responsibly of proving such cases, he said he understands that not everyone he arrests will ultimately be convicted of DUI. Many plead to lesser crimes such as reckless driving or reckless endangerment to avoid trial.