Quick Answer: Yes. Under Missouri law, you can be arrested and convicted of a DWI / DUI even if your test results are below 0.08%. A Breath Alcohol Content of 0.08% is considered a “rebuttable presumption” of impairment, but a police officer’s subjective observations of your driving can lead to charges at lower levels.
Executive Summary
- 0.08% is Not Final: A breathalyzer result of 0.08% or higher is only a “rebuttable presumption” of guilt, meaning we can aggressively challenge the machine’s accuracy in court.
- Arrests Below 0.08% Are Legal: Missouri police can still arrest you for a DWI / DUI if your BAC is below the legal limit based purely on their subjective observation of your driving and behavior.
- Field Tests Are Flawed: Roadside evaluations like the Horizontal Gaze Nystagmus (HGN) are highly subjective officer opinions, not infallible science.
- Minors Face a 0.02% Limit: Underage drivers are subject to Missouri’s strict “Abuse and Lose” zero-tolerance laws, where even a fraction of a drink can trigger license suspension.
Is a .08% Breath Alcohol Content an Automatic Conviction?
Many drivers believe that 0.08% is a “magic number”—if you are under it, you’re safe; if you’re over it, you’re guilty. In reality, Missouri law treats a Breath Alcohol Content of 0.08% or more as a “rebuttable presumption” of intoxication.
This means the state presumes you were impaired based on the number, but that presumption is not final. With over 45 years of experience in DWI / DUI defense, I know that these machines can fail, and officer procedures are often flawed. My goal is to dismantle the state’s case by showing that the “number” on the machine does not accurately reflect your ability to operate a motor vehicle.
Can You Be Arrested for a DWI / DUI Under 0.08%?
Yes. Under RSMo §577.012, you can be charged with “driving with excessive blood alcohol content” if you are at .08% or above, but you can also be charged with a standard DWI / DUI based solely on impairment.
If a police officer in Lee’s Summit, Liberty, or Kansas City stops you and observes what they believe to be “intoxication”—such as slurred speech, the smell of alcohol, or swerving—they can arrest you regardless of what the breathalyzer says. I frequently see clients charged with a first-offense DWI / DUI after blowing a 0.06% or 0.07% because the officer made a subjective snap judgment.
Challenging Subjective Evaluations: HGN and DRE
When your Breath Alcohol Content is under the limit, the prosecution relies heavily on “Subjective Evaluations.” These are not scientific certainties; they are officer opinions.
- Horizontal Gaze Nystagmus (HGN): Officers look for “jerking” in the eyes. However, this can be caused by natural medical conditions, certain medications, or even simple fatigue.
- Drug Recognition Expert (DRE): This is a 12-step process used by officers to guess if a driver is under the influence of drugs. These “experts” are often just patrol officers making guesses about your physiology.
In my four decades as a counselor at law, I have found that these subjective tests are the weakest part of the prosecutor’s case. We focus on Mitigation and Negotiation to show the court that these opinions do not meet the high burden of proof required for a conviction.
Underage Drivers and Zero Tolerance
For drivers under the age of 21, Missouri enforces a strict “Abuse and Lose” policy. For minors, a Breath Alcohol Content of just 0.02% is enough to trigger a license suspension. This “Zero Tolerance” standard is designed to be punishing, but there are still ways to negotiate for a favorable resolution that protects a student’s future.
FAQ: Missouri BAC and DWI / DUI Defense
Can I refuse a breathalyzer in Missouri? Refusal results in an automatic one-year revocation under Implied Consent laws, but this can be challenged in an administrative hearing.
What is an SIS in a DWI / DUI case? A Suspended Imposition of Sentence (SIS) allows a defendant to serve probation without a permanent conviction entering their public record.
Do I need a lawyer if I blew over 0.08%? Yes. Because 0.08% is a “rebuttable presumption,” a lawyer can challenge the calibration of the machine and the officer’s training.
Protect Your Future and Your Record
A DWI / DUI charge is a serious threat, but it is not a guaranteed conviction. I have spent 45+ years helping good people in Jackson, Clay, Platte, and Cass counties find a way forward through negotiation and mitigation.
Call 816-221-5900 (Kansas City) or 816-525-1500 (Lee’s Summit) for a free consultation.