Prosecutors Told .08% Means When Driving

Posted by Lawrence Taylor on October 25th, 2005

Police and prosecutors, in their zeal to raise drunk driving arrest and conviction rates, are continually looking for new and creative ways to interpret the laws.  The law requires that the person was actually driving — and so sitting in a parked car or even sleeping becomes "driving".  The law requires evidence that the accused drove a vehicle — so bicycles, wheelchairs, lawnmowers, and even horses become "vehicles".  Sadly, many courts have gone along with these deceits.

The law also requires that the person be over .08% under the influence when he is driving – not an hour later when tested at the police station.  The problem is that it takes on average roughly an hour for the body to reach peak absorption of alcohol after consumption.  So, for example, if a suspect has "one for the road", the drink will not be fully absorbed into his blood for an hour or so:  He may have had a blood-alcohol concentration (BAC) of .06% at the time he was pulled over, but .09% an hour later when tested on the machine.  (Another recurring problem is the driver who has a drink or two after driving.)

The laws of most states requires the taking of the test to be within two or three hours (depending on the state) after driving to be admissible.  It does not, however, change the law:  the prosecution must still show what the BAC was at the time of driving.  This is usually done through rebuttable presumptions and/or retrograde extrapolation — a fancy term for estimating earlier BAC levels based upon average rates of absorption and elimination.

As they have done in other areas of DUI litigation, however, prosecutors like to see how far they can go.  Result:  Convictions for having BACs over .08% at the time of testing, with no evidence of BAC when driving.  Every once in awhile, though, a court decides that enough is enough:


State Supreme Court Overturns DUI Conviction

Lexington (AP) — A Kentucky Supreme Court ruling now gives drunk drivers room to question blood-alcohol tests that are narrowly above the legal limit.

Friday the court unanimously overturned the ruling of a Lexington man, who was convicted of driving under the infuence.  Nelson Lopez was charged with a DUI on October 11th, 2002, and blew a 0.08 blood-alcohol level about an hour after his arrest.

The court says county prosecutors wrongly argued that it didn't matter what his blood-alcohol level was when he was driving, as long as Lopez's level measured above the legal limit of 0.08 within two hours of his leaving the car….

Why does it take the Supreme Court to explain to prosecutors that driving under the influence means driving under the influence?  And whatever happened to prosecutors whose concern was justice rather than winning convictions?

(All of which reminds me of an old joke when I was a deputy D.A.:  "Anyone can convict a guilty person: It takes skill to convict an innocent one".)

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