Can a person be charged with DUI even if his blood alcohol content is below .059 and thus below the legal limit, but on the contention of the police officer that the defendant had shown evidence of intoxication and impairment. In People v. Phillips, the 1st District Appellate Court here in Illinois was tasked with making this determination. The defendant was charged with driving under the influence pursuant to 625 ILCS 5/11-501 (a)(2) which is a charge of driving while under the influence, but this particular paragraph makes no statement as to the blood alcohol concentration. Instead (a)(2) relies on the assertion that the driver was driving in an impaired condition based on a totality of the evidence at the time of the traffic stop. Upon being found guilty by the trial court, the defendant appealed. One of the issues on appeal was the contention that the State failed to meet its burden of proving him guilty beyond a reasonable doubt on the argument that since he did not blow .08 there is a presumption of a lack of impairment. Therefore, the defendant contended that if he did not blow .08 then the statute stated that the court needed to start from a presumption that he was not impaired and thus could not be charged. The appellate court ruled on the contrary stating that although under the Illinois vehicle code someone who is stopped for suspected DUI, and is given a breath test, and blows less than .08, but more than .05 the statute makes no presumption of impairment, but neither does it infer a lack of impairment. The court ruling basically confirms what has been the state of affairs related to this particular form of DUI charge – that when someone’s BAC, based on a breathalyzer test, is below .08 it is the totality of circumstances, the total facts of the case, that will control in the ultimate court’s decision. Therefore, the testimony of any witnesses, the arresting officer, any other officers, and anyone else as to the facts and circumstances of the DUI stop. This may include the appearance of the defendant, whether there was a smell of an alcoholic beverage on the person, whether they were able to go through the field sobriety tests sufficiently well, and any other facts and circumstances allowing the court or the jury to make an informed decision on whether or not the defendant was guilty. In this case it was the smell of an alcoholic beverage on defendant, bloodshot eyes, slurred speech, general disorientation and lack of awareness of his surroundings, and finally difficulty with the field sobriety tests which were sufficient for a finding of guilty.