If you are over 21, it is – sort of.
Under Louisiana law, if you are over 21 and you test above .08 on a breath or blood test, you are presumed to be impaired at the time of operation of a motor vehicle and it is up to you to overcome the presumption.
That does not mean that if you are not presumed to be under the influence based on a breath or blood test reading that you will not be arrested.
While in most instances you won’t be, many times a person is arrested with a reading under .08 because an officer believes that there is evidence that a driver was under the influence based on a combination of alcohol and prescription or non-prescription drugs. In this case, there is no presumption afforded to the state and it must use other evidence in an attempt to obtain a conviction.
Very few police officers in our area are drug recognition expert (DRE) certified. Therefore, they must rely on their personal observations and cannot give expert testimony on the effects of drugs and driving impairment. To a skilled OWI practitioner, the arresting officer’s lack of training and experience in drug impairment often provides the margin of error necessary to secure a reduction of charges or an acquittal.
Just because an arrest was made when a reading was below .08 does not mean you will not be prosecuted. By the same token, just because there may be evidence of drug use, that use does not mean that a driver was impaired at the time of operation.