Sometimes when I ask a potential client if the charge is a "DWI," the potential client responds, "No, it's a DUI" (like it's something different). Then I am often asked, "And what is this Drive and Test .08 in 2 Hours stuff mean?" Here is my entertaining explanation (rather than the boring legal explanation):
Way back in the era of the cave man, the wheel was invented. Then people learned how to have an animal pull a wagon. Around that same time, people learned that certain sugary beverages could be fermented. While this made the sugary juices taste funny, consuming them produced a euphoric effect that those primitive people found pleasing. Soon, people found that they could combine drinking these funny tasting beverages with riding on wagons pulled by animals.
Several thousand years later, the internal combustion engine was invented. Soo n thereafter, one of these engines was placed on one of those wagons, and the horseless carriage was invented. Not long after that, people learned that they could drink alcoholic beverages before driving these automobiles.
After a while, the government started to notice that drunk drivers were causing more accidents than sober drivers. So the government made it illegal to "Drive While Intoxicated" or "DWI." However, when these cases went to trial, jurors often could not agree on how much was too drunk. So the government started obtaining blood tests and passed a law which stated someone was "presumed intoxicated at an alcohol concentration of .15." However, some lawyers successfully argued to juries that the presumption did not apply to their clients because they could "really hold their liquor."
So the government changed the laws to say that a person only had to be "Driving While Under the Influence of Alcohol" and started calling it "DUI." I still call it "DWI," because the last time I checked the spelling of the word "while," it still started with the letter "W." Moreover, the government passed a "per se" law that made it illegal to drive with a "Blood Alcohol Concentration of .10 or More," regardless as to whether one could "hold his or her liquor." The per se level has since been reduced even further to .08.
Some lawyers in the past successfully argued that a breath test does not necessarily reflect an accurate blood alcohol concentration, since the breath test presumes that everyone has the average breath-blood partition ratio of 2100 to 1. In fact, persons generally will vary significantly on either side of the average. A successful DWI defense lawyer once said, "If we were all average, we would all be dead, female and Chinese." Heaven forbid that any DWI defendant was ever acquitted because of scientific truth. So the government made it illegal to drive with a concentration of .10 grams per 210 liters of BREATH (this has since been reduced to .08 grams per 210 liters of BREATH).
In the past, some lawyers successfully argued that their clients consumed a significant amount of liquor immediately before they left the bar. It was argued that the last alcohol was not yet in the driver's system at the time of driving. These drivers were not yet under the influence or at the level of .10 (which is now.08). In fact, this type of defense is scientifically true, but heaven forbid that the truth should prevail in a DWI case. So the government made it illegal to drive and then test ".10 or More Within Two Hours of Driving." Now the government only has to prove ".08 or More Within 2 Hours of Driving."
Then the following was argued: "But I wasn't even driving;" so the government made the law apply to just "operating a motor vehicle."
"But I wasn't even operating a motor vehicle." So the government made the law apply to "being in physical control," which is just about anything if one is in the driver's seat with the keys nearby.
"But I work around hazardous chemicals which can be misidentified as alcohol by that breath testing machine." So the government passed a law which made it illegal to "Drive Under the Influence of a Hazardous Chemical." In the original list of prohibited hazardous chemicals, "sawdust" was included.
BOTTOM LINE: In the evolution of man, we have evolved from happy, drunken cavemen riding in their wagons with no government interference to a society where the government has at one time tried to stop us from "Driving, Operating, or Being in Physical Control of a Motor Vehicle While Under the Influence of Sawdust." Although sawdust has since been deleted from the list, the DWI laws just keep getting tougher. However, police officers are still human and make mistakes which can help you win your DWI case, often regardless of whether you were driving badly or were drunk. Their breath testing machines and blood and urine tests are not perfect and are often maintained with the level of proficiency that one would expect from our undermanned government with its often unmotivated workforce. Criminal defense attorneys must continue to be creative in asserting their client's innocence, the State's problems in proving cases, and in identifying police misconduct.