Nicholas County Prosecuting Attorney Charged With DUI


From the Charleston Gazette today:

Nicholas County’s prosecuting attorney was charged with DUI on Sunday after wrecking his car in a single vehicle accident in Webster County. Mark Hudnall was elected Nicholas County prosecutor in 2004 by a narrow margin over James “P.K.” Milam. He is running for re-election this year, and faces Milam and Keith W. McMillion in the Democratic primary next month.

What a poor decision to make generally, but on the eve of an election? Being the elected prosecutor of a county, and charged with the duty to prosecute individuals for violations of the law, including DUI, he ought to make a public comment in the next day or so – either apologizing or proclaiming his absolute innocence (in which case it better be the truth). In any event, what a lucky break for his Democratic opponent.

Read the full article here.

– John H. Bryan, West Virginia Attorney.

Change in WV DUI Laws, Effective June 1

From the Register-Herald:

Drunk drivers with .15+ BAC to face harsher penalties June 1

Law also erases mandatory 24-hour lockup, can reduce license suspension to 15 days

By Mannix Porterfield
Register-Herald Reporter

A year-long movement to punish drunken motorists with a blood alcohol content of .15 or higher with harsher penalties and encourage others to use an Interlock before they can start a vehicle becomes law in June.

Gov. Joe Manchin made it official Tuesday by signing SB535, the result of an intense research and lobbying effort by Mothers Against Drunk Drivers in West Virginia.

With West Virginia’s passage of the revised DUI statute, only 11 states are without a law that creates the “aggravated” crime of operating a motor vehicle with a BAC of .15 or higher.

Another feature allows first-time offenders blowing a BAC of less than that level to have their licenses reinstated in 15 days, in lieu of the standard 30-day suspension, provided they install an Interlock, a device that prevents an ignition from starting if alcohol is detected when the driver blows into it.

A third element erases the mandatory 24-hour lockup for those with a BAC under .15, thus saving cities and counties some money on inmates sent to regional jails.

“We are very happy to see this finally come to fruition,” MADD’s state director, Donna Hawkins, said Tuesday after Manchin’s decision was announced.

“Very much so. I think it’s going to save lives. It’s definitely going to be a very positive law for West Virginia.”

In the House of Delegates, all provisions were retained, except for one in the Senate version that called for mandatory BAC tests on suspected drunken drivers in accidents that result in deaths or serious injuries.

Sen. Dan Foster, D-Kanawha, a Charleston surgeon and the chief sponsor of the Senate version, had no difficulties accepting this single change in his proposal.

For aggravated DUI, the mandatory penalty calls for two days to six months in jail. Hawkins said her group wanted to focus on this key provision in going after motorists with higher blood alcohol levels since they are responsible for the most carnage.

Two years ago, the most recent one for which statistics are available, drunken drivers caused 129 deaths and were blamed in accidents causing 2,600 non-fatal injuries.

Hawkins said the movement led chiefly by MADD began across the nation about a decade ago to crack down on motorists in an aggravated DUI category.

For most of last year, Hawkins personally led a series of meetings as director of an ad hoc committee of lawmakers, prosecutors, police officials and the Division of Motor Vehicles, working in tandem with a legislative interims panel.

“There were a lot of meetings, a lot of hours,” she said.

MADD was a chief proponent in lowering the BAC from the old standard of .10 to .08 to be declared intoxicated.

Manchin plans to conduct a ceremony April 10 with MADD officials, including its national director, Glynn Birch, and Hawkins.

In advance of the bill formally becoming law, Hawkins plans to tour the state to meet with law enforcement and DMV officials, raising public awareness about it and demonstrating how the Interlocks work.

“We’re going into different communities and talk about this new law and what it’s going to do,” she said.

— E-mail:

Monroe County School Bus Driver BAC was .093

From today’s Register-Herald:

Prosecutor: Bus driver’s alcohol level was higher than field test showed


By Christian Giggenbach
Register-Herald Reporter

UNION — Medical tests have revealed the blood alcohol level of a Monroe County school bus driver charged with DUI following an accident in February was considerably higher than his preliminary on-scene breath test, a prosecutor said Tuesday.

Clyde Watson Jr., 62, of Union, appeared briefly before Monroe County Magistrate Nancy Crews for a pre-trial hearing and was represented by Gap Mills lawyer Geoffrey Wilcher.

State Police charged the 14-year veteran school bus driver with DUI with minors in a vehicle after he crashed his school bus down a 120-foot ravine with 11 children aboard on Feb. 5.

School officials said Watson over-corrected his steering after running off the right side of the road and then slammed through a telephone pole before plunging down the ravine and finally coming to rest over a small creek. No children were injured in the accident.

County Prosecutor Rod Mohler told Crews a “plea agreement has been offered” to Watson which allows the defendant to plead guilty “as charged.”

“Based on Mr. Watson’s years of community service, the state will not object and would be willing to agree to the minimum sentence and fine,” Mohler said. “I think Mr. Watson wants to take some additional time to think over what has been offered and the state will not object.”

Two days after the accident, Watson apologized for his actions in a letter to the school board and also tendered his resignation. In the letter, Watson said he had “hit rock bottom” the morning of the accident and had “an ongoing alcohol problem.”

Mohler’s case against Watson was strengthened greatly after the defendant’s blood test showed a .093 BAC level nearly two hours after the accident.

A preliminary breath test at the scene indicated a relatively low level of alcohol, about .022. Preliminary tests cannot be used as evidence in a trial. However, a blood test can be used as evidence and Watson’s new BAC is higher than the state’s .08 legal limit. After a person’s BAC level reaches .08, a driver is “presumed to be impaired” under West Virginia law. A state CDL regulation requires drivers to be under .04.

Watson did not speak and quickly exited through the back door of the magistrate’s office with family members after the five-minute hearing.

Mohler called the new BAC reading “substantial” and said it puts to rest other issues that previously were raised concerning the accident. At the time of his arrest, Watson told police he had taken the cold medicine Nyquil, which contains alcohol, the night before the accident. Mohler had previously indicated the defendant may also have been diabetic.

“This also takes any health issues out of the picture as the cause of the accident,” Mohler told The Register-Herald after the hearing.

Crews tentatively scheduled another hearing in 30 days. If convicted, Watson faces two days to 12 months in jail and up to a $1,000 fine.

— E-mail:

Upcoming House Vote on Amended DUI Bill

From the Beckley Register-Herald:

House geared to vote on amended DUI bill

Mannix Porterfield
Register-Herald Reporter

CHARLESTON — A proposed update in West Virginia’s drunken driving law exited a key House panel with one alteration that proponents say is acceptable.

Omitted was a provision in the Senate version that would have mandated blood alcohol tests of any motorist suspected of being drunk after a fatal highway accident.

Donna Hawkins, head of Mothers Against Drunk Driving in West Virginia who spearheaded the legislation, wanted to see the Senate bill left intact.

But Hawkins said Wednesday she was assured by House Judiciary Chairwoman Carrie Webster, D-Kanawha, that she would draft a bill for the 2009 session to deal with such testing.

A House vote on the revised bill is expected Friday.

“I have no problem with it,” Sen. Dan Foster, D-Kanawha, said.

Foster was pleased the House panel didn’t tamper with the major components, led by a new offense of “aggravated DUI” for motorists with a BAC of .15 or above. For them, Interlocks attached to vehicles to test a driver’s breath for alcohol would be mandatory.

First-time offenders would have the option of using Interlocks, and the incentive built in the measure would cut in half their license suspension from the existing 30-day period.

A third key element eliminates the mandatory 24-hour lockup for first-time offenders with a BAC of .08 to .149 as a cost-cutting step for counties, many of which are struggling to pay regional jail costs.

Existing practice allows counties to be charged the per diem rate of $48.50 (due to be cut by 97 cents in July) twice since an offender can be jailed a few hours, then returned after going before a magistrate.

Jail costs are swallowing up much of some county budgets. Last year, for instance, Raleigh County was billed more than $2.5 million for keeping inmates at Southern Regional Jail.

“The main points of our legislation are in there,” said Foster, who worked closely most of last year with an ad hoc committee anchored by Hawkins while lawmakers prepared a bill in tandem during the interims.

“I’m convinced it will save lives. And also, it will save resources for the state as well. It’s a good combination.”

Change in WV DUI Laws Passes Committee

From the Beckley Register-Herald:

Panel advances DUI measure with ‘aggravated’ clause

Mannix Porterfield
Register-Herald Reporter

CHARLESTON — Nearly a year in the making, a revision of West Virginia’s drunken driving law that punishes motorists with a blood alcohol content of .15 or higher exited the Senate Finance Committee Tuesday with its blessing.

Another key element seeks to provide counties and cities with relief from regional jail costs by eliminating the mandatory 24-hour term that now results in “double bookings” that cost $48.50 per diem.

A third provision lets first-time offenders choose to install Interlocks to see if they have ingested any alcohol — regardless of BAC — and if any is present, the ignition won’t start.

By electing to use Interlocks, first-time offenders can cut in half the current 30-day license suspension.

For anyone blowing a BAC of at least .15, the crime would be considered “aggravated DUI” and Interlocks would be mandatory. So is a jail term running from two days to six months.

“It’s a very important bill in terms of safety, as well as for courts and municipalities,” said Sen. Dan Foster, D-Kanawha, the key sponsor.

“For me as a physician, safety is the most important part. We’re into the technology age now. We’ve reached the point where we can’t get any farther down in terms of deaths and injuries. This is a start.”

Donna Hawkins, state director of Mothers Against Drunk Driving, spearheaded last year’s interims drive and anchored a special ad hoc committee that worked in tandem with lawmakers.

In 2006, the last year that statistics are available, drunken motorists killed 129 people in West Virginia and were blamed in 2,600 non-fatal injuries.

“This is a historical, landmark piece of legislation for West Virginia,” she said.

“This is going to save lives. It’s going to get offenders back on the road quicker. It’s going to save on regional jail costs. It has a lot of great elements in it.”

While no hard figures were available on potential jail savings, Hawkins pointed out as many as 7,000 first-time offenders are jailed each year.

MADD preferred to see mandatory use of Interlocks for first-time offenders with a BAC of .08 to .149, she said, “but at the same time, there is a great incentive in this legislation for those with low BAC levels.”

Committee counsel advised one panelist, Sen. Jesse Guills, R-Greenbrier, that any vehicle used by a convicted drunken driver must be equipped with the Interlock to stay in the program.

And another member, Sen. Vic Sprouse, R-Kanawha, was told that alcohol in a driver’s system will prompt the Interlock to prevent a vehicle from starting.

“There’s really no tolerance,” Foster said.

Hawkins said her group was pleased to see West Virginia move closer to the “aggravated DUI” law. One provision calls for a 45-day license suspension for such offenders, followed by 270 days on the Interlocks.

“Those are the offenders that are true problem drinkers and cause the majority of fatalities in West Virginia,” she added.

Bus Driver’s Pretrial Hearing Continued

From the Beckley Register-Herald:

Bus driver’s pre-trial hearing continued

Christian Giggenbach
Register-Herald Reporter

A pre-trial hearing in the case of a Monroe County school bus driver charged with DUI has been continued until March 10 because his court-appointed lawyer asked to be dismissed from the case, officials said Tuesday.

Clyde Watson Jr., 62, of Union, was scheduled to appear Tuesday before Monroe Magistrate Nancy Crews, but his court-appointed lawyer, Jeff Rodgers of Lewisburg, filed a motion to recuse himself, according to court documents.

The reason for the recusal request was not given in the document, and Rodgers was not available for immediate comment Tuesday.

Watson, a 14-year veteran bus driver, was charged with DUI while transporting minors after he crashed his bus into a ravine with 11 children on board Feb. 4. A preliminary breath test indicated Watson had a small amount of alcohol in his system, .022.

About a week later, Watson apologized to the community and board members in a letter given to schools Superintendent Lyn Guy in which he admitted to an ongoing alcohol problem and being impaired the day of the bus crash. The school board held an emergency meeting the following Monday and announced in a brief news release that Watson had resigned.

However, after obtaining both of Watson’s letters through a Freedom of Information Act request, The Register-Herald learned Watson did not resign his position, but rather the letter stated he was “retiring effective immediately.”

When asked about the discrepancy Tuesday, Guy said Watson could not make up his mind on whether to resign his position or retire and he chose to retire after learning he risked some benefits if he quit his job.

“He told me he was going to lose some of his benefits if he was fired, so I wrote the news release as a resignation,” Guy said by phone Tuesday. “We had already set up a termination letter and had a termination hearing scheduled. I don’t know if it makes too much difference. My goal was to make sure that he never drove another bus again.”

If convicted, Watson faces two days to 12 months in jail and up to a $1,000 fine.

— E-mail:

Proposed WV DUI Bill Detoured to Committee

From the Beckley Register-Herald:

DUI bill taking minor detour to Finance Committee subpanel for study

By Mannix Porterfield
Register-Herald Reporter

CHARLESTON — A year-long effort to encourage the use of Interlocks to test the sobriety of drivers and punish more harshly those with a blood alcohol content of .15 or higher ran into a temporary detour Thursday.

Mindful of the complex nature of the bill, Senate Finance Chairman Walt Helmick, D-Pocahontas, decided to dish it off to a three-member subpanel.

Donna Hawkins, state president of Mothers Against Drunk Driving, the prime mover of the bill that consumed a year of interims study and work by an ad hoc panel she directed, was visibly disappointed by the delay.

But Sen. Dan Foster, D-Kanawha, who keyed the push for the bill in the Legislature, didn’t mind that a panel composed of Majority Leader Truman Chafin, D-Mingo, Education Chairman Robert Plymale, D-Wayne, and Sen. Vic Sprouse, R-Kanawha, would study it further.

“I don’t object to that,” Foster said afterward. “They want to look at the financial aspects.

“It’s a complicated bill. I think the tenor of comments we heard from the other members of the committee indicated they will move on it.”

The idea is cut from 30 days to 15 the length of a license suspension of first-time offenders who voluntarily install the Interlock, a device that measures BAC and won’t let one start if it’s too high.

“We’re going to run the bill,” Chafin promised. “We want to understand the bill more clearly. Obviously, it’s a big issue in West Virginia. We’ve got jails full, and prisons.”

In the so-called “aggravated DUI” category of .15 or above, motorists would spend a mandatory jail term of two days to six months and be fined from $200 to $1,000. A license could be revoked for up to 270 days.

Another aspect that makes it attractive to counties struggling to pay regional jail costs wipes out the mandatory 24-hour lockup for first-time offenders.

“What actually happens now, individuals are brought into a holding cell to see a magistrate, and that could be two hours or 10 to 12 hours,” Foster told the panel.

“Then they will see a magistrate who can decide whether they stay 24 hours or not, or is free to leave. Before, they had to go back and finish up the 24 hours.”

And that, he emphasized, amounts to double booking for the same offense, meaning a county has to shell out twice for the same individual.

Hawkins told the panel she has no problem with eliminating the 24-hour mandatory sentence in existing law.

“We think this is an excellent bill,” the Charleston resident said. “We fully support this piece of legislation. We think it will save lives.”

In 2006, the last year figures were available, drunken drivers were blamed in 129 deaths and some 2,500 non-fatal injuries.

“What we have found with MADD is that jail time alone is not the deterrent,” she said.

“We believe the Interlock provision in this bill will help save lives. And it gets the offender back on the road faster. It allows them to provide for families. And it will also save on regional jail costs, which we know is a big concern.”

He was Drinking: Monroe County Bus Driver, Admits Drinking Problem

Note: It appalls me that I received criticism for being “mean” when this man receives nothing but excuses for his behavior. The facts are these: He drank, he drove a school bus filled with children, he drove the school bus off a 120 foot cliff, he lied and said he drank Nyquil, he lied and said he had a medical problem, then he finally admits the truth. Well, words are cheap. Trust me, many people facing criminal charges have the innate ability to sound extremely sorry and remorseful for what they have done. In the following news article, his written apology is quoted. However, it looks to me like one of those apologies that is not really an apology. In other words, “I’m sorry but it wasn’t me – it was the alcohol making my decisions for me.” He should take real responsibility for his actions and come to grips with the fact that he did make a “knowing” choice. He selfishly chose alcohol over the safety of the innocent children who he was entrusted to protect. Both he, the Board of Education and the State of West Virginia better pray that none of these children have been injured – John H. Bryan, Attorney at Law.

From today’s Register-Herald:

Bus driver resigns, admits drinking problem

By Christian Giggenbach
Register-Herald Reporter

Saying “I hit rock bottom,” a veteran Monroe County school bus driver arrested last week on a DUI charge has resigned after admitting to having “a problem with alcohol.”

Clyde Watson Jr., 62, of Union, tendered his resignation to Superintendent Lyn Guy Saturday, and Guy presented it to the school board during a special session Monday evening.

“Mr. Watson, who was involved in the bus accident on Feb. 5, 2008, and was charged with DUI, had written a letter of apology to the board president, the superintendent and the transportation director Feb. 7, two days after the accident,” Guy said Tuesday in a faxed news release.

In the letter, Watson admitted to having an ongoing alcohol problem, according to Guy.

“It has been through the constant support and encouragement of my closest friends, for the first time in years, I’m willing to admit to myself that I have a problem with alcohol,” Watson wrote. “As difficult as that was for me, it is even more difficult to admit to each of you.”

Guy could not be reached for further comment Tuesday. School officials said Guy will be absent for the rest of the week due to an out-of-state conference for superintendents.

Watson, a school bus driver for 14 years, crashed his 33-foot-long bus into a 120-foot ravine with 11 school children aboard Feb. 5. There were no injuries.

“I hit rock bottom Tuesday morning (Feb. 5). I can’t change the fact that I committed a great moral and ethical injustice, and risked the lives of many,” Watson said in his apology letter.

“What I can change is my life and the direction it was headed in before those kids got on my bus … It is with heavy heart that I can tell you that at no time would I have knowingly put my kids at risk. I did, however, let the influence of alcohol unfortunately impair my judgment.

Watson was charged with DUI with minors in a vehicle, according to a criminal complaint filed by State Police Sgt. J.L. Cooper.

At the scene, Watson had a preliminary breath test which indicated a small amount of alcohol was present in his blood, about .022.

Watson told police he had taken Nyquil, which contains alcohol, the night before the accident.

Cooper said Tuesday he will contact the Monroe prosecutor’s office concerning Watson’s alcohol admission and resignation to the school board.

“He has already given us a statement saying he did not drink during the day of the accident,” Cooper said Tuesday. “If Mr. Watson wishes to revise his statement, then I will be glad to speak to him.”

Monroe Prosecutor Rod Mohler could not be reached for comment Tuesday. State Police are awaiting the results of Watson’s blood tests from a hospital visit the day of the accident, Cooper said.

Although a driver is presumed intoxicated by the state when his or her blood alcohol content is .08, police can charge a driver with DUI at lower BAC levels if the consumption of alcohol has impaired his or her ability to drive.

If convicted, Watson faces two days to 12 months in jail and up to a $1,000 fine.

School board member Bill Shiflet said a disciplinary hearing had originally been scheduled for Monday prior to Watson’s resignation.

A Register-Herald request for a full copy of Watson’s resignation and apology letter was denied by school officials.

School officials also said Watson had an unlisted phone number. It is uncertain if Watson has hired an attorney to represent him in the criminal case.

Shiflet said Watson’s letters did not specifically mention what type or how much alcohol he had consumed prior to taking the wheel of the bus.

When asked what liability Watson’s actions may have caused the county, Shiflet was unsure.

“It’s a very tragic event and we are very thankful that no one was injured,” Shiflet said by phone. “It certainly could have been a lot worse than it was.”

Your Author Confronted On Street Regarding Monroe County Bus Accident

Yet another update regarding the Monroe County School Bus DUI Case: a well-known local citizen approached me on the street this morning and criticized my comments regarding the driver of the now-infamous DUI School Bus as being too harsh.

I will reiterate what I told him in case there are others who feel my comments were too harsh. My initial reaction was perhaps too harsh given that subsequent mitigating information was released regarding a possible medical condition that may have caused the accident. Furthermore, I initially read the Register-Herald article as stating that he had a BAC of “.22” when in fact it was “.022” – which is obviously a big difference. For this reason, I subsequently redacted my initial comments and provided an update with the new information on this Blog.

The point is, that if I was mistaken about the facts, then I agree that my language was too harsh and I apologize. If the driver had not been drinking, then I was wrong in using such strong language. Although, anyone who has previously driven off a 120 cliff while driving a school bus filled with children – whether drunk or not – should not be given a second chance to drive children around on mountain roads. So, to a certain extent, it doesn’t matter whether he was intoxicated or not. The fact is that it happened, and it can’t be attributed to icy roads.

However – and this is a big however – if he had been drinking, then I stand by my comments 100%. I don’t care if the driver of the bus is Mother Theresa, I will side with the children 100% of the time. If that man got behind the wheel of that bus, putting the lives of 11 innocent children at risk, then he deserves nothing less than 11 years in prison (1 year for each child), plus lifetime revocation of his license. My opinion may be unpopular to the friends and family of the driver, but I base my opinion on principle, not public opinion.

After I told this to the aforesaid citizen who confronted me on the street, he replied that, “well he did do it – he already resigned, but you shouldn’t say things that are mean.” Let it be known from here forward, if you recklessly or negligently hurt innocent children in my community, then I will write “mean” things about you on this Blog. – John H. Bryan

See update here.

Another Update on Bus Driver DUI Arrest in Monroe County

From today’s Register-Herald:

Note: The latter half of this article contains a very informative recitation of what the DUI laws are in the State of West Virginia. West Virginia is one of the states that allow a conviction if the BAC result is .08 or greater (solely based on the BAC result). Other states, such as North Carolina focus more on whether or not the person was intoxicated, regardless of what the BAC reading was. However, these states do use the BAC reading (from the intoxilyzer machine, not the field preliminary breath tests) as evidence that the person was intoxicated. Guilt is shown mostly by the officer’s testimony regarding the defendant’s performance in the field sobriety tests, and regarding the quality of driving that took place immediately prior to the stop. Having formerly prosecuted DUI’s (DWI’s) in Raleigh North Carolina, I have witnessed defendant’s acquitted despite having BAC results of .12 and .13 – well above the legal limit of .08 – because the judge was convinced the person was not “impaired” despite the high BAC reading. – John H. Bryan, West Virginia criminal defense attorney.

See UPDATE here.

Bus accident, arrest throw the spotlight on DUI laws

By Christian Giggenbach
Register-Herald Reporter

A school bus accident in Monroe County last week and the subsequent arrest of the driver on a DUI charge has thrown a spotlight on the state’s drunken driving laws.

Almost everyone knows West Virginia’s legal limit for driving under the influence is a blood-alcohol content of .08.

But few understand exactly what .08 means legally and why a person can be charged and convicted for drunken driving with BAC levels that are much lower.

State Police charged Clyde Watson Jr., 62, of Union, with DUI while transporting minors after the bus he was driving crashed down a 120-foot ravine last Tuesday. Eleven children were on the bus, but no one was injured.

Police said Watson had a .022 level of alcohol, well below the .08 limit. Watson told police he had taken Nyquil, an over-the-counter cold medicine that contains alcohol, the night before, and Monroe Prosecutor Rod Mohler said later in the week “there are some issues that need to be explored regarding whether (Watson) might be a diabetic and how alcohol of any amount would affect his system and be shown on a breath test.” Watson told police he felt “funny” just before the accident.

Monroe school officials said Watson previously had a spotless 14-year safety record.

– – –

The Register-Herald asked Charleston defense attorney Carter Zerbe to explain the state’s DUI laws, which are some of the strictest in the country.

“In West Virginia, it doesn’t matter if you are intoxicated or not,” said Zerbe, who has been defending DUI clients for 20 years. “A person could have a BAC level of .08 and not be drunk, but if it’s at that level, or above, you are guilty of a crime regardless.”

Zerbe said the law is known as the “per se” law and a person can be convicted of DUI even if the person shows no outward signs of intoxication.

“Another misconception is that you have to have a scientific test in order to be convicted of DUI,” Zerbe said. “If a police officer testifies that a defendant had slurred speech, or if the person staggers while being videotaped, that can sometimes be sufficient evidence for a conviction, even when there were no blood tests or breath tests.”

Zerbe said police must first have a “reasonable suspicion” of drunken driving before pulling a car over.

Many times, a burned-out tail light or expired license plate gives an officer probable cause to stop someone, he said.

If the officer smells alcohol or observes symptoms of intoxication, the officer can request that the driver perform three field sobriety tests, which include a vision test and walking tests.

“If necessary, then the officer can administer a preliminary breath test, where a person blows into a tube,” Zerbe said.

That test is not admissible as evidence in a trial, but can give the officer probable cause to ask for a blood test or a secondary breath test, both of which can be used as evidence.

But what if your BAC level is below .08? Can you still be charged and convicted of drunken driving?

Yes, because it’s not the amount of alcohol in your system that matters, but rather how much that alcohol impairs your ability to drive, Zerbe said.

Remember, the .08 standard is used to “presume” someone is drunk; below .08, alcohol can still affect some people’s ability to drive, he said.

“You can be convicted if alcohol impairs your ability to drive,” Zerbe said, “even though your BAC is below .08.”