Anyhow, your BAC does make a huge difference. The difference between .01 to .02 or .02 to .03, etc., is minimal. We, somewhat arbitrarily and somewhat based on facts, choose .08 as the magic number for intoxication, no matter the circumstances involved. I trust someone who is driving at .08 much more than someone at a .16 or .24. Should any be driving, heck no, but if you give me the choice I'll pick .08 every time, and I'm sure you would, too. So, yes, it does make a difference. However, people don't like grayscale when it comes to criminal matters, which is fine. Now, if you could put this person at a .08 in a semi trick or on a bicycle, which would you choose? Both are against the law, but you're going to choose a bike every time. So when it comes to punishments and plead agreements, these are factors that can and should be considered.