First Time DUI Borderline Breath Test in No Criminal Charges

In many First Time DUI cases, the key legal question is not just “What was the BAC on the machine?” but “What was the BAC at the time of driving?”

New York prosecutors must prove impairment or intoxication at the moment the car was being operated, and science shows that BAC often peaks 30–90 minutes after drinking stops.

In this First Time DUI matter, we used medical literature and expert commentary to explain that a breath reading taken later during the absorption “rising” phase can overstate the driver’s BAC at the time they were actually on the road.

During dinner, the client slowly consumed one rice-wine–style drink with a full meal, and he waited about 20 minutes after the meal before driving, believing this would protect him from any First Time DUI concerns.

The restaurant was only a short distance from his apartment, and the planned route was less than a few miles.

On the way home, however, he encountered a late night DUI checkpoint and agreed to provide a breath sample, which registered approximately 0.06% above the DWAI “impairment” band but under the 0.08% DWI per se limit for a First-Time DUI.

Because the result was over 0.05%, officers treated the stop as a First-Time DUI-type offense and initiated a DWAI investigation.

The client immediately explained that he had only one drink and that his job required daily driving; losing his license due to a First Time DUI or DWAI would jeopardize his entire household finances.

He contacted SJKP at the earliest possible stage to avoid a criminal filing.

To challenge the First Time DUI allegation, counsel first reconstructed the timeline in detail:

• Exact start and finish time of drinking
• Type of alcohol, strength, and quantity
• Food consumed and the client’s body weight and metabolism
• Time the client left the restaurant, started driving, and reached the checkpoint

Using this reconstruction, the defense showed that the client was likely in the “rising BAC” phase at the time of the test, meaning his BAC was still increasing and the reading for this First Time DUI may have been higher than his level while driving.

Written materials explained that alcohol absorption slows when drinking with a full meal, and expert commentary supported the argument that the test result could not be treated as a precise snapshot of his earlier state during this First Time DUI incident.

Next, the defense grounded the First Time DUI strategy in three pillars: science, law, and narrative.

From a scientific standpoint, we highlighted that chemical test results are not infallible and must be interpreted in context, especially in a borderline First Time DUI reading.

From a legal standpoint, we cited New York guidance confirming that BAC readings below 0.08% may support only an “impaired” chargeand that courts should consider all circumstances, not just a single number, in a First Time DUI case.

From a narrative standpoint, we presented the client as a stable wage earner with no prior record, whose First Time DUI encounter was the result of a single misjudgment, not ongoing alcohol misuse.

We submitted documentation about his job responsibilities, proof that his family relied on his income, a written commitment to abstain from alcohol before driving, and a detailed plan to avoid any future First Time DUI risk.