Many drivers believe that having a high tolerance for alcohol decreases their chances of being charged with DUI. The truth is that your tolerance for alcohol—or lack thereof—really has no bearing at all in a DUI or APC trial.
Two Ways to Prove DUI or APC
Under Oklahoma law, the prosecution can attempt to prove that you were driving under the influence (DUI) or in Actual Physical Control (APC) in one of two ways:
- By demonstrating that you were operating the vehicle while having a blood alcohol concentration (BAC) of .08% or higher
- By providing witness testimony or other evidence that you were under the influence of alcohol at the time of operating the vehicle which left you incapable of safely driving the vehicle
In legal terms, the first method is referred to as the “per se” theory of DUI. This means that, if you have a BAC of .08% or greater, you are presumed to be under the influence of alcohol.
The second method involves presenting evidence—usually witness testimony from the arresting officer—that the alcohol or other impairing substance rendered you incapable to operate the vehicle. This evidence may include driving patterns, physical appearance, odor, and results of field sobriety tests.
Why Alcohol Tolerance Is Irrelevant
If the prosecution can demonstrate that a chemical test reliably and accurately showed your BAC to be .08% or greater at the time of driving, then you can be found guilty of DUI or APC—regardless of how well you tolerate that level of alcohol in your bloodstream. This is why it is important to investigate how the test was given and whether proper procedures were followed to see if a motion to suppress the test should be filed.
On the other hand, if the prosecution cannot successfully show that the chemical test—usually a breath or blood test—was conducted in full accordance with Oklahoma law, you may still be found guilty of DUI or APC if it can be shown that you were under the influence of alcohol. In this instance, your tolerance or lack of tolerance is still inconsequential, because the officer and any other witnesses will be testifying to behaviors they allegedly witnessed that indicated impairment by alcohol. In these cases, it is important to consider filing motions to suppress any results or observations based on field sobriety testing.
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