The Chicago Tribune’s Headline that former Bears’ player “Tank Johnson wasn’t legally drunk” when he was arrested for DUI in Gilbert Arizona isn’t quite right. Johnson was waived by the Bears following his arrest. He has already served time in jail on gun charges and was suspended by the NFL for the first eight games of the upcoming season.
The Tribune reports that Johnson’s blood alcohol level was 0.072 percent, below the presumptive level of 0.08 percent. Charges have yet to be filed in the matter.
It is a common misunderstanding that a driver is only DUI if his BAC is at least 0.08 percent. This is untrue. Johnson was charged under Arizona’s DUI law which states that is unlawful for someone to drive “if the person is impaired to the slightest degree.” ARS 28-1381(A)(1).
Every state has a presumptive BAC of 0.08 percent. When a driver has a BAC above the presumptive level, the burden of proof switches from the government to the accused.
A judge or jury, in a DUI case, is instructed to take a BAC above 0.08 percent as proof that a driver was DUI. The defendant must prove something was wrong with the breath or blood test.
For the Tribune, and other media outlets, to indicate that Johnson was not DUI aids to the common misconception. If Johnson is not charged with DUI, it will be because the prosecutor believes the testimony of the arresting officer will not be enough, without a presumptive BAC, to convince a jury Johnson was DUI.