The law forbids intoxication, not the existence of any BAC. See my below comment.oohrah wrote:AFAIK, the law does not specify a legal limit, as it does for DUI, so I interpret that as any BAC is illegal while carrying.
Basically in your camp here, Keith, but a small distinction. A person does not have to prove the officer wrong, they simply need to show reasonable doubt about whether he is correct.Keith B wrote:Yes, the number exists. .08 or greater and you are automatically considered intoxicated. Less than .08 BAC and you are at the discretion of the officer. If they decide you are intoxicated by definition, then you are going to have to prove that their evaluation of you was not correct in front of a judge or jury in court.
Along those lines, in the absence of a BAC result, the officer must prove his case by testifying as to his observations that led him to conclude the defendant is intoxicated. There is a large sub-industry of defense attorneys who literally make a good portion of their living from DWI/DUI defense. They are thoroughly familiar with the large body of case law that pertains to this subject and know every avenue to challenge.
Anyone who states it is "completely up to the officer's discretion" is correct in that the officer can decide to make an arrest whether or not it will ever hold up at trial. However, they are not correct in terms of absolute discretion versus objective evidence that will hold up at trial.
That is why police officers are trained in standard field sobriety test and know how to testify regarding their training, experience, and detailed descriptions of defendant behavior/physical condition.