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How can the police arrest and impound your car and ticket you for DUI if you only blow a .005 on their machine?

Seattle, WA |

Pulled over for speeding slightly over. No mention of impairment or odor. No drugs involved. Have the receipt for the .005 BAC - they released immediately once they had those results, but still ticketed and had to pay impound/tow fees.

Attorney Answers 3


There are a lot of things going on here. Some facts we would need to know are if they performed field sobriety tests on you? Portable breath test? Other evidence of impairment including prescription or non-prescription drugs? Were you arrested for another crime also such as driving while license suspended/revoked?

Police can arrest you even if your BAC is less than .08 for DUI/Physical Control if they have facts to show you were "appreciably" affected by alcohol and/or drugs. I have had DUI cases with BAC's as low as .000 with drugs, 0.03 with just alcohol up to .41. Did they have a lawyer specially trained in DRE (drug recognition expert) talk to you and give you tests? Was a blood draw administered?

If you feel like you were wrongly arrested or your vehicle should not have been impounded, you can request a "tow" hearing. All of these issues will require the experience of a DUI attorney. Since most consult for free, contact one right away and they will ask the questions I did above and figure out a bit more on what is going on with the facts.

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Failed a field sobriety due to Meniere’s disease. Have been treated for it by doctors for years. No driving restrictions. The portable test said .16 - the real test in the station recorded .005 - No prescription drugs or alcohol was ingested at all. No other arrest at the time of this ticket other than a 10mph speeding ticket. No blood draw. Thanks for your response.

Shawn Mccully

Shawn Mccully


There is a huge discrepancy between the PBT and BAC. Something is wrong with one of the two breath test machines. The prosecutor will need to tie the alcohol consumption to your ability to drive a motor vehicle if they intend to convict you of DUI. There is no way your body could process alcohol from a .16 down to a .005 within a few hours. Sounds like you have good issues for an attorney to work with. Many clients have a hard time spending the money for an attorney when they feel they haven't committed a crime. Unfortunately, this will be a tough pill for you to swallow but you need to hire an attorney more than ever on a case like this.


Unfortunately, we are seeing more and more of these. The police are charging people with DUI for blowing under the limit all the time these days. They can charge you if your ability to drive was affected by alcohol. What they do is try to use everything else in the case to prove impairment such as Field Sobriety Tests, any bad driving, your physical appearance, etc. I have tried these cases to a jury with mixed results. No officer is going to get on the stand and admit he messed up. What he will say is that based on his training and experience he felt you were too impaired to drive a vehicle safely. The jury puts a lot of weight on what an officer says.

As far as the impound goes, more and more law enforcement agencies are putting mandatory impound policies in place. I think what happened is some officer once cited someone for DUI and then let them go and they went and drove again and hurt somebody. The police are trying to avoid liability and make a little money on the side.

Get an attorney to help you out on this. This is more of a mess than it seems like it should be.

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I agree with the above attorneys that you can be charged with DUI under the "affected by" prong, which means that if the cop believes you were affected by alcohol while operating your vehicle, then you were probably DUI.

Now here's the kick in the gut with impound and tow fees. The court gives a lot of discretion to police. If the cop says that you were operating a motor vehicle while affected by alcohol, then a Judge will uphold the impound fee. You're free to go to court to request a return of the impound fee, but a Judge will likely tell you no.

I was in court last month here in Pierce County and watched a Tow/Impound fee hearing. The 19 year old girl was arrested for DUI. She blew .000/.000, which means she hadn't had a drop to drink as she explained to the cop. There was no evidence of drugs. The judge sided with the cops and denied her request to have the fees returned to her.

We LOVE cases like yours because of the proof issues involved. One of our associates is a former DUI deputy prosecutor and she loves beating these low BAC cases. You can find a lot of attorneys who are likewise happy with facts similar to those you've laid out.

Find an attorney with DUI experience. We, like many defense attorneys, offer free consultations and payment plans. If this is important to you, then make sure you ask your lawyer about these offerings.

Good luck!

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