DUI DEFENSE: DUI ABSORPTION RATE

June 28, 2013

DUI ABSORPTION RATEIn the United States, a DUI is considered a very serious offense. In 1980th, approximately 25,000 people died in DUI accidents. By 2014, that figure dropped to just below 10,000 people. While this is still a large number, the tough stance of DUI offences clearly paying of by saving lives. The number of people arrested for drunk driving in the United States is over 1 million arrests per year. The prosecution all over the United States and California are extremely tough on DUI cases and do prosecuted cases that might not be as serious as the prosecutor believe. Body physiology is a significant reason why someone who is tested over the legal limit at the time of driving might not be guilty of the DUI. What is known as DUI absorption rate is a rate of alcohol metabolism that will change as time goes by and as the person stops drinking.

ABSORPTION RATE

This is a common issue at trial for a DUI in Los Angeles because it takes time for a drinker to get to the highest level of alcohol in his blood. Once the highest level of alcohol is known, it can be estimated when the person will be sober and when he was at .08 percent. However, all the calculations are based on an approximate level of elimination by an average individual, pegged at around .02% per hour.

Because testing of blood or breath occurs sometimes after driving – and the crime has to do with being above the limit at the time of driving, DUI prosecutor have to put an expert to testify that driver was above the limit at the time of driving. This witness is an “expert witness” who will make an educated guess as to what was the Blood alcohol level (BAC) a the time of driving by looking at time passed since driving and the level of alcohol at the time of testing. This technique is called “retrograde extrapolation” and it is very inaccurate. The reason it is inaccurate is the expert’s necessity to make assumptions about the driver that is based on averaging all people together. For example, government’s expert will usually assume that all people are “fully absorbed” 30 minutes after drinking. In fact, many scientific papers show that absorption can last up to 6 hours or at least 60 minutes. Goldfrank’s Toxicologic Emergencies Treatise states that “80% to 90% of ingested dosage is fully absorbed within 60 minutes when conditions are optimal”. But many things affect absorption including:

WHAT AFFECTS RATE OF ABSORPTION AND ELIMINATION

  1. Presence of food in the stomach – When a person consumes food, it slows down the rate of absorption. A person who does not have any food will get drunk quicker on empty stomach. A typical rate of absorption of 15 minutes to 30 mines can slow down to hours because the food in the stomach will interfere with the absorption.
  2. How fast the stomach empties – a physiological factor that can’t be predicted by government expert. The rate of elimination is dependant on many physiological factors including rate of elimination. If a persons’ stomach will empty slow, it will slow down the process of absorption.
  3. The level of alcohol in the alcoholic drink. Research shown that alcohol absorbs the quickest when the alcoholic drink has alcohol concentration of near 20%. If the alcoholic beverage’s alcohol concentration is lower then 20%, the alcohol will be absorbed much slower. The opposite can also be true, a high alcohol concentration may not increase absorption because high alcohol concentration can irritate stomach lining and reduce absorption rate.
  4. Carbonation of an Alcoholic Drink – Carbonated drinks will reduce level of absorption. If you consumed champagne or consumed an hard liquor drink with added soda, the level of alcohol absorption will change and it would be once again hard to calculate level of absorption without knowing more.
  5. Many medications will affect level of absorption. For example, even taking such common medication as aspirin might change the level of alcohol absorption and even elimination and will make calculation of impairment much more difficult.
  6. One of the most important factors affecting absorption is the rate with which an individual consumes alcohol. For example, a slow drinker will absorb alcohol at a much slower rate then a fast drinker. Someone who sips his drink through the day clearly will not get that impaired as a person who gulps his drink quickly.
  7. Medical conditions will often affect the rate of absorption and elimination. For example, stomach conditions and conditions related to gastro-intestinal illnesses (such as GERD) might have a huge impact on the level of absorption and elimination and will make calculation of impairment very difficult.
  8. Lastly, individual variations of each person can play a significant role in absorption and elimination of alcohol. Each of us is a different person who does not fit a prosecutorial model of an average person. For instance, an average man in the United States is 5’10, but most people you know are not.
  9. With so many factors affecting absorption – it is clear that many government experts are not intellectually honest when they provide testimony that absorption is identical among all people. Los Angeles DUI attorney has the necessary experience to defend you against the government and the experts who will say almost anything to secure a conviction. Through a process called “impeachment”, Los Angeles DUI attorney can show the errors in experts calculation and the wrong assumptions made by the prosecutors. Los Angeles DUI defense attorneys who will cross-examine DUI prosecutor’s expert and will expose the truth and show how inaccurate their testimony and ultimately that the government can not prove beyond a reasonable doubt that you were above the legal limit when you drove the car.

INCREASED ABSORPTION TIME BASED ON TYPE OF AN ALCOHOLIC BEVERAGE

A common theme during a DUI trial is the speed with which alcohol gets absorbed by the body.  Assuming a driver stopped drinking at some specific time, the alcohol level will rise until some point later and will eventually reaches a constant level (aka plateau).  The speed of absorption matters because during the absorption phase, a person’s breath results are overestimated giving the appearance that the person’s blood alcohol level is higher then it really is.  Also, the speed of absorption is an element in the equation to determine the blood alcohol level at a specific time.  In other words, if experts can’t agree what was the speed of absorption with which defendant’s body absorbed alcohol, the level of alcohol at the time of driving can’t be established.   Common research material indicate that under optimal conditions consumed alcohol will be fully absorbed by the body within 30 to 60 minutes.   Yet, the optimal conditions are not that common in real life.  For example, alcohol best absorbed when its concentration is at .20%.  Dilution will cause slow absorption, thus beers will not be absorbed within 30-60 minutes but longer periods of time. Similarly, hard liquor will be absorbed slower because their higher alcohol level will cause irritation and spasms inside digestive tracks and it will delay absorption.  When these and other factors are present, the absorption can be delayed by 2 to 6 hours.  Therefore, prosecution’s expert opinions that “all alcohol is absorbed within one hour”  need to be taken with a grain of salt if only because the burden of proof in a criminal case is exceptionally high.

Real life application: A client was charged with a DUI after he tested .09% BAC one hour after stopping drinking.  He admitted to drinking several beers.  Beers have slow absorption rate, therefore he should be absorbing alcohol at the time of the test; thus, at the time of driving his blood alcohol level must be below the legal limit.

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