DUI DEFENSE: HIGH BLOOD ALCOHOL LEVEL

May 26, 2014

blood alcohol levelThe most important piece of evidence in a DUI is the blood alcohol level of the arrested person. Most DUI will be prosecuted when the blood alcohol level is above .08% BAC. High blood alcohol level DUI are harder to defend because not only prosecutors are less willing to reduce DUI to a lesser charge or dismiss it altogether, but also because high blood alcohol level DUI can involve harsher punishments if there is a conviction. Los Angeles DUI lawyer have years of experience defending high blood alcohol level DUI in Los Angeles and will fight your case no matter how terrible you think your case is.

During a DUI trial, a prosecutor needs to establish that at the time of driving, your blood alcohol level was above .08% by volume. However, the test of defendant’s blood or breath does not happen until 30 minutes after the driving. To show what was the blood alcohol level at the time of driving, the prosecutor needs to present testimony of an expert using scientific method called “retrograde extrapolation”. The prosecutor’s expert will usually be a toxicologist or criminologist who is trained in the area of alcohol metabolism. The government’s expert will rely on research by Widmark, who came up with an equation that is used to estimate the blood alcohol level at the time of driving. Los Angeles DUI attorney knows how to attack government’s experts testimony and discredit the calculation used to show that at the time of driving you had high blood alcohol level in your blood.

In the past our office handled cases where a police officer conducted traffic stops at night and after smelling alcohol on the driver’s breath requested the driver to perform field sobriety tests. The driver usually fails some of the field sobriety test (most do for reasons unrelated to drinking), and the police officer arrests the driver. After placing the driver under arrest, the police officer takes the driver to a hospital for chemical testing of his blood. In one recent case, the blood was tested by Los Angeles County Sheriff’s department lab with result of.17%, a very high blood alcohol level. In this case, the evidence of drunk driving included blood alcohol test results that are more than double the legal limit in California but they were measured one hour after driving.

In this case, Los Angeles District Attorney’s office filed a two counts misdemeanor DUI complaint, charging this defendant with an alleged violation of California Vehicle Code sections 23152(a) and 23152(b). To prove this case at trial (especially the “b” count), the District Attorney will subpoena the police officer who arrested the defendant and a toxicologist whose job is to testify that the driver had above the limit and very high blood alcohol level at the time of driving. Without testimony by the government’s toxicologist expert, our expert Los Angeles DUI Attorney will get a dismissal of this DUI, because of the People’s failure to present evidence that at the time of driving defendant was above .08% BAC. The emphasis on “at the time of driving” is crucial because without the expert testimony there is no evidence that defendant was above the legal limit at the time of driving.

During his testimony, the government expert will use his calculation to show that defendant was above the legal limit for alcohol at the time of driving. Typically, the experts will use a Widmark formula which even in its shortened form has 4 variables:

(1) the number of ounces of alcohol that defendant consumed;

(2) defendant’s weight;

(3) distribution ratio of alcohol through the body;

(4) number of hours between first drink and the time of driving.

A change in any of these variables will cause a different BAC result. The “distribution ratio” is assumed to be one constant for males and a different constant for females (.73 and .66 respectively). Yet, various studies showed that this constant varies depending on biological idiosyncrasies of each person – causing errors in BAC levels. DUI attorney Los Angeles is able to fight your DUI case because the nature of science used to prosecute you is imprecise. Even when the chemical tests show a very high blood alcohol level DUI, Los Angeles DUI lawyer can help you fight your DUI.

Without knowing when the person started to drink and how much he weighs, it is impossible to calculate the blood alcohol level at the time of driving. Usually police officers rely on defendant’s driver’s license to approximate weight and eventually calculate blood alcohol level at the time of driving. When the information on the driver’s license is inaccurate, the calculation of blood alcohol level will be inaccurate also and the blood alcohol level determination will be different. Also, if defendant does not know when he started to drink – this will create a problem because the formula can’t work without one of the variable missing. This and many other variations will give Los Angeles DUI lawyer ammunition to fight your high blood alcohol level DUI. You can call our office anytime to talk to experienced DUI attorney about your case.

In our case discussed above, the defendant said that he had 2 or 4 beers. An expert will have to testify that it is impossible to have 4 beers and reach .17. – so either the blood test is inaccurate or the defendant was lying to officers about how much he had to drink.

In our particular scenario the driver agreed to submit to a preliminary alcohol screening test (PAS) 30 minutes after driving and it came back .14% BAC 30 minutes after driving, causing blood alcohol level to rise .03% in 30 minutes. If we are to assume that the driver’s blood alcohol level rose steadily from the time of stop until the time of test, we can estimate his BAC to be .11% at the time of driving. However, because it is unknown what is the highest blood alcohol level this individual reached, it is possible that he was below the limit at the time of driving. If at the time of blood test the driver was eliminating alcohol from his body and the high blood alcohol level that he ever reached was a few minutes prior to the blood test, it must be .18% BAC. The estimate of driver’s blood at the time of driving will be further lower by at least .08 bringing his blood alcohol level to .09 +/- the margin of error. Because margin of error is presumed to be .02% BAC, it is possible that the defendant was at .07% at the time of driving.

This high blood alcohol level case is now has a defensible theory that can be used to convince a jury that defendant is innocent.

Because the burden is on the prosecutor to show that defendant is guilty beyond a reasonable doubt, this defense theory can create such a doubt and result in a not guilty verdict. The particular facts of this case are based on an open case that handled by expert Los Angeles DUI attorney at our office. To discuss specifics of your case please call to talk to drunk driving Los Angeles attorney at (818) 921 7744 .

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One response to “DUI DEFENSE: HIGH BLOOD ALCOHOL LEVEL”

  1. Teena Maltie says:

    Great blog! Do you have any tips for aspiring writers? I’m hoping to start my own site soon but I’m a little lost on everything. Would you recommend starting with a free platform like WordPress or go for a paid option? There are so many choices out there that I’m totally overwhelmed .. Any suggestions? Many thanks!

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