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Can You Be Convicted of a DUI without a Breath Test?


In a DUI case, the prosecution can present the results of a breath test in an attempt to prove beyond a reasonable doubt that you were operating a vehicle while under the influence of alcohol. But what if you refused to submit to the analysis, the testing machine was down, or the judge deemed the results inadmissible? Can the prosecution still obtain a conviction without a breath test?

The answer to that question is 'yes.'

Oklahoma's DUI Per Se Law

Under Oklahoma's DUI law (47 O.S. § 11-902), one way a person can be charged with driving while intoxicated is if they had a blood or breath concentration of 0.08 or more. What that means is that if someone had a BAC at or above that limit, the law recognizes that as evidence "that the person was under the influence of alcohol" (47 O.S. § 756).

To obtain a conviction under the DUI per se law, the prosecution must have a concrete number they can point to, showing that you had an unlawful level of alcohol in your body. Your BAC can be measured by analyzing a sample of your breath. But that's not the only way it can be determined.

BAC can also be measured through a blood test, which can be given if the breath test device is inoperable or a qualified person is not available to administer the breath test. The blood test is actually a more reliable analysis of your alcohol concentration, as it directly analyzes the amount of alcohol in your body. A breath test is an estimate of the level. Thus, if, for some reason, a breath test isn't done, the prosecution can still seek a DUI per se conviction by presenting as evidence the results of your blood test.

Note that in Oklahoma, you can refuse either a breath or blood test. However, doing so is a violation because, under the implied consent law, you are deemed to have given permission to be subject to chemical testing after a lawful DUI arrest. Refusal can result in your driver's license being suspended. It can also be used as evidence against you at trial (47 O.S. § 756).

That said, if you refuse to provide a sample for a chemical test, none shall be given. And you may only be compelled to submit to an analysis if the officer obtains a search warrant.

If the prosecution does not have the results of a breath or blood test, does that mean sufficient evidence does not exist to prove guilt beyond a reasonable doubt? Not necessarily. The prosecution may attempt to show that you violated the law by presenting evidence that you were under the influence of alcohol.

Operating a Vehicle While Under the Influence

According to 47 O.S. § 11-902(A)(2), it's unlawful for any person in Oklahoma to operate a vehicle while under the influence of alcohol. Essentially, this means you were driving when your normal faculties (e.g., judgment, motor control, reaction time, etc.) were impaired to the point that you placed the public's health and safety at risk.

A violation of the DUI law pursuant to the "under the influence" subsection is different from the per se law in that a specific number is not attached. In other words, the prosecution does not have to show that your alcohol content was at any level to obtain a conviction. Therefore, they do not have to have the results of a breath (or blood) test to seek a conviction.

The prosecution may rely on evidence other than a chemical analysis to prove you were under the influence.

Some of the things they can point to include, but are not limited to:

  • Field sobriety test performance: During the initial traffic stop, the officer may have directed you to participate in field sobriety tests, such as the horizontal gaze nystagmus, walk and turn, and one-leg stand. These measurements test your ability to complete tasks that are challenging to do when intoxicated (and some may argue that they're hard to do when sober!). The prosecution could present as evidence the officer's testimony about your performance on the FSTs.
  • Preliminary breath test: The preliminary breath test (PBT) is typically given on the side of the road after you have finished the FSTs. It consists of your blowing into a handheld device, which measures your breath alcohol concentration. The BAC number generated from a PBT cannot be used as evidence in court. However, in State v. Cardenas-Moreno, the Oklahoma Court of Criminal Appeals Ruled that as long as the PBT results are not used to indicate a BAC level, they can be admissible as evidence to show impairment. Still, with any matter, determining the admissibility of PBT results should be done on a case-by-case basis depending on the reliability of the evidence.
  • Officer's observations: The prosecution may also rely on the officer's testimony during trial. From before the officer even pulls you over to them actually arresting you, the officer is observing all types of things that might establish probable cause to believe that you were under the influence. For instance, before making the stop, they may have been watching your driving behaviors and might have seen you drift between lanes, drive too slowly, or fail to obey traffic signals. When they approached your vehicle, they paid attention to how you were talking or what statements you made as they asked questions.
  • Video footage: The police cruiser might have been equipped with a dashcam, or the officer might have been wearing a body cam during your stop. The prosecutor may use footage from these devices to show how you were driving or performed on the field sobriety tests.

Fighting DUI Charges

Although it's possible that absent a breath test, the prosecution can still seek a DUI conviction (provided they have other evidence to point to), that does not mean that a guilty verdict is inevitable. A criminal defense attorney can examine everything that happened in your case to determine how to challenge the accusations. For instance, they can show that your performance on field sobriety tests was due to something other than alcohol.

If you have been charged with driving under the influence in Norman, schedule a consultation with the Law Offices of Keith J. Nedwick, P.C. by calling (866) 590-8173 or submitting an online contact form. We can pursue every legal avenue to seek a favorable result for you.

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