What is the Rising Blood Alcohol Defense?

Monday, November 30th, 2015

California DUI law requires that a person’s blood alcohol content be at a 0.08 percent or higher at the time they were driving. However when a person drinks, their blood alcohol content is either rising or falling. This means that, at the time the driver was actually driving, his or her blood alcohol content could have been lower than the chemical test reading.

When a person drinks, alcohol enters the blood stream after it is absorbed through the walls of the stomach and the small intestine. This process is called absorption and during this time, the person’s blood alcohol content will continue to rise. When the person stops drinking, absorption stops and a person’s blood alcohol content peaks. After the person’s blood alcohol content peaks because they have stopped drinking, it then begins to fall.

If we were to chart a person’s blood alcohol content as they drink, stop drinking, and begin sobering up, we would see a lopsided bell curve, rising sharply and falling gradually. The more alcoholic drinks are and the faster someone drinks them, the quicker the blood alcohol content rises.

A person’s BAC can be determined in several ways. The first is with a preliminary alcohol test (also known as a “PAS” test) which is a pre-arrest breathalyzer. The PAS test is a field sobriety test is not mandatory. The chemical test, on the other hand, is mandatory and can be either a blood test or a breath test after a person has been lawfully arrested for a California DUI.

If only one test is done and only one BAC level determined, we’ll only where on the curve the person was at the time they took the test. In other words, there’s no way to determine whether the person’s blood alcohol content was rising or falling.

When there are two BAC readings at two different times, however, we can determine whether a person’s BAC is rising or falling because one reading will be higher than the other.

Take, for example, a person who is pulled over at midnight for drunk driving. Following the stop at around 12:20am, the officer does a PAS test. The PAS test indicates that the driver’s BAC is 0.09 percent. Because the driver is over the legal limit of 0.08 percent, the driver is arrested on suspicion of a California DUI. Following the arrest, the driver provides a blood test for the mandatory chemical test. The blood test is performed at 12:45am and the results show a blood alcohol content of 0.14 percent.

This is a rise of 0.05 percent in the 25 minutes between the PAS test and the blood test. Therefore, if you to track the BAC level backwards in time to the last point the person was driving at midnight, it is possible that the driver’s blood alcohol content was as low as 0.05 percent.

Conversely, it is also possible that the later BAC reading is higher than the earlier reading which would indicate that the driver’s blood alcohol content was falling.  Therefore, unfortunately, it is also possible that it was much higher at the time they were driving.

While this may serve as a defense to California Vehicle Code section 23152(b) – driving with a 0.08 percent blood alcohol content or higher – it may not serve as a defense to California Vehicle Code section 23152(a). If a person “drives under the influence,” they can still be convicted of a California DUI under California Vehicle Code section 23152(a). To prove that a person is “driving under the influence,” the prosecution typically uses the officer’s observations of poor performance of field sobriety tests, poor driving, and the “objective symptoms of intoxication.”

If the prosecution, however, cannot prove that a person was under the influence, it may be possible to they were under the legal limit of 0.08 percent at the time they were driving using the rising blood alcohol defense.  

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Should You Take a Breath or a Blood Test?

Monday, November 16th, 2015

One of the biggest areas of confusion when it comes to a California DUI is the chemical test. More specifically, one of the most asked questions regarding the chemical test is whether a person should submit to a breath or a blood test.

Before I get into whether a breath test or a blood test is better, let me start off by saying that, yes, California law requires that someone who has been arrested for a California DUI submit to a chemical test. Any test requested by an officer prior to arrest, including field sobriety tests and a pre-arrest breathalyzer (called a “PAS” test), is optional. And I would never suggest submitting to them. Why give the officers any more reason to arrest you when you don’t have to?

Once a person is lawfully arrested for a California DUI, however, they must submit to a chemical test under California’s “Implied Consent” law which can either be a breath or a blood test.

Ok, so now on to the question of whether a person should submit to a breath test or a blood test after they’ve been lawfully arrested. Unfortunately, like many questions dealing with the law, the answer is: it depends.

The blood test is far more accurate than the breath test and much less likely than a breathalyzer to produce a false reading. Also, when law enforcement draws blood from a DUI suspect, they are required by law to preserve a sample of the blood for the defense. This means that the defense attorney can request that a portion of the blood be sent to an independent analyst for re-testing. This is called a “blood split” and is used to contradict the results of the state blood test results or possibly to show contamination of the blood sample.

If a person knows that they are under the legal limit and a blood test is likely to show that they are under the legal limit, a blood test might be the better option because it is more accurate. On the other hand, for the same reason, the blood test may not be the best option for someone who will likely test over the legal limit.

The breath test is far less reliable than the blood test and can be inaccurate for a number of reasons. Without addressing all of the problems with breathalyzers here, I’ll just point you to Lawrence Taylor’s post:

http://ltduiblog.wpengine.com/2014/09/09/are-breathalyzers-accurate/

In fact, it is not uncommon for a breathalyzer to provide a false positive result for someone who is actually under the legal limit.

While the general accuracy of breathalyzers cannot be legally challenged as a whole, a skilled California DUI defense attorney can challenge the reliability of the particular breathalyzer that was used in a DUI arrest.

If a person knows that they are likely to be above a 0.08 percent blood alcohol content, the breathalyzer is likely the better option because it is easier to refute the results.

So to answer the question of whether a breath or a blood test is the better chemical test, it really does depend. It depends on whether the person believes they are actually over or under the legal limit. If you believe that you are under the legal limit, the blood test is the better option because the accuracy of the blood test will show that you are, in fact, under the legal limit. On the other hand, if you believe that you are over the legal limit, the breath test is the better option because it is easier to refute the results.

 

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Can Alcohol Sensors in All Cars Eliminate Drunk Driving?

Monday, June 8th, 2015

Last week federal officials said that new technology which could be installed in all new cars in the next five years could eliminate drunk driving.

The new technology, however, isn’t doing anything we’re not already doing: preventing a vehicle from being started by someone who has a blood alcohol content above the legal limit. What is different is the method by which this is being accomplished.

Passive breath sensors or touch-sensitive contact points on a starter button or gear shift would immediately register the blood alcohol content of a driver. Unlike the ignition interlock devices, which require a driver to blow into a tube to provide a breath sample and start a car, drivers of vehicles with the new technology need not do anything for a BAC level to be detected.

“The message today is not ‘Can we do this?’ but ‘How soon can we do this?’ ” said Mark Rosekind, administrator of the National Highway Traffic Safety Administration (NHTSA). “It is a huge step forward.”

Although cost estimates of the new technology have not yet been made, officials anticipate the costs, once the sensors go into general production, to be comparable to the cost of seat belts or air bags; about $150-$200 per vehicle.

Unlike other safety features like backup cameras, which the NHTSA made mandatory beginning in 2014, the new alcohol detection technology would not be required by automakers. Instead, the technology would be offered as an upgrade to new vehicles.

“These devices have to be quick, accurate and easy to use for the automakers to put them on their platforms,” said Bud Zaouk who runs the laboratory where the technology is being developed.

Developers are still working on refining the technology to ensure accuracy. Their goal is also to allow the technology to produce blood alcohol readings in less than a second and to work for at least 10 years or 157,000 miles without calibration or maintenance.

Not surprisingly, Mothers Against Drunk Driving (MADD) has expressed its support for the new technology. Colleen Sheehey-Church, president of MADD, addressed an audience at NHTSA.

“This is the future,” she said, gesturing toward a vehicle equipped with prototype detection gear, “when drunk drivers will be unable to drive their cars. If this technology was available in 2004, my son, Dustin, might be alive today.”

Sheehey-Church’s son died in the back seat of a car when the driver  who was drunk drove into a river in 2004.

In all that I’ve heard and read about the new technology, the NHTSA has yet to address some glaring problems.

Unlike an ignition interlock device, which is intended to only detect the blood alcohol content of the driver, the passive alcohol detection devices will be detecting alcohol located in the air of the vehicle whether it’s coming from the driver’s seat, passenger’s seat, or even the back seats.

If such is the case, what’s the point of having a designated driver? In fact, this is just the tip of the iceberg of questions yet to be addressed.

Will the technology detect alcohol coming from something other than a drunk driver such as mouthwash, perfumes, or hand sanitizer? Will bartenders have to shower and change clothes before heading home after a shift? Will the technology work with open windows? What about convertibles or motorcycles?

If you ask me, let’s just focus on self-driving cars to reduce drunk driving.

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Should I Take a Breath or a Blood Test?

Monday, November 17th, 2014

One of the most common questions I get as a DUI defense attorney is “Should I have taken a breath test or a blood test?” As with many questions in DUI law, the answer is, “It depends.”

Just to be clear, I’m talking about a breath or blood chemical test required under California’s implied consent law. This does not include the pre-arrest preliminary alcohol screening test. Although a breathalyzer, the “PAS” test is not a chemical test and is not required under California law. The chemical test, on the other hand, can either be a breath or a blood test and is required under California law once a person is lawfully arrested on suspicion of a California DUI.

The DUI blood test is much more accurate than the DUI breath test. The blood test is far less likely than a DUI breath test to produce a false reading. Another benefit of a DUI blood test is that a sample of the blood is saved for future testing by the DUI suspect’s defense attorney. The defense attorney can have the sample tested by its own blood analyst to contradict the results of the prosecutor’s analyst. This is called a “blood split” and it is commonly used in DUI defense.

Having said that, the blood test can still be subject to scrutiny. See my previous post: http://ltduiblog.wpengine.com/2014/09/15/the-dirty-skin-defense/

In other words, the blood test may be good for someone who is under the legal limit because it is more accurate. The blood test might be bad for someone who is over the legal limit because it is more difficult to refute the accuracy.

The DUI breath test, on the other hand, is far less accurate than the DUI blood test. Breath tests can provide false readings for a number of reasons. See Lawrence Taylor’s post: http://ltduiblog.wpengine.com/2014/09/09/are-breathalyzers-accurate/

While California defense attorneys cannot challenge the unreliability of breathalyzers on a general basis, they can provide evidence that the particular breathalyzer used on the DUI suspect was inaccurate.

The breath test may be good for someone who is over the legal limit because it is easier for a California DUI attorney to refute the results. However, many people who are actually under the legal limit may test over because of the breath test’s inaccuracies.

If you are fairly confident that your blood alcohol content will below the legal limit of 0.08 percent, you’re probably better off opting for the blood test because it will accurately show that you were, in fact, under the legal limit. However, if you think there is a chance that you could be above the legal limit, you might be better off opting for a breath test so that your attorney can challenge the results if you test above the legal limit.

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PAS Test vs. Chemical Breath Test

Monday, September 22nd, 2014

People are often confused about whether the law requires them to take a breathalyzer during a California DUI arrest. Unfortunately, the answer is just a little more complicated than just “yes” or “no.”

Let me clear up the confusion.

I often use the term “breathalyzer” in my posts for both a preliminary alcohol screening test and a chemical breath test. They, however, are not the same thing. In fact, the type of test being administered will determine whether a person is required to take the test or not.

For chronological clarity, let’s start with the preliminary alcohol screening (PAS) test.

When an officer stops a driver and begins investigating a possible California DUI, they may conduct several field sobriety tests. These tests include the horizontal gaze nystagmus test, the one-leg stand test, or the walk and turn test. The PAS test is a breathalyzer test which is considered a field sobriety test. Like the other field sobriety tests, the PAS test is optional.

According to California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”

As a field sobriety test, the PAS test is not required. Law enforcement is required to advise that the PAS test is, in fact, voluntary. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”

In other words, the PAS test is only used as a means to determine if there is enough probable cause to arrest a person for a California DUI.

However, once a person is lawfully arrested for a California DUI, California’s Implied Consent Law requires a person to submit to a chemical test which can be either a breath or a blood test.

California Vehicle Code section 23612(a)(1)(A) sets forth the Implied Consent requirement. “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”

This essentially means that if you are licensed to drive in California, you have impliedly given consent to submit to a chemical test if you have been lawfully arrested for a DUI. The operative words here are “lawful arrest.” The obligation to submit to a chemical test only attaches once a person is lawfully arrested. Before that point, no obligation exists.

So then what does it mean to be lawfully arrested for a California DUI?

An officer can arrest someone if they have probable cause to believe that the person is driving drunk. Probable cause exists when an officer has reasonable and trustworthy facts that would lead a reasonable person to believe that the person has been driving drunk.

Officers obtain probable cause for a DUI arrest through the driver’s statements that they have been drinking, driving patterns consistent with intoxication, observations of signs of intoxication, and failure of field sobriety tests…including the PAS test.

Okay, let’s put this whole process into a nutshell.

The officers use the PAS test, which is optional, to determine if there is probable cause for a DUI arrest. If there is probable cause for an arrest, and a person is arrested, they must submit to a chemical test which can be either a blood or a breath test.

Bottom line is: Don’t give the officers the probable cause when you don’t have to. Like other field sobriety tests, always respectfully decline the PAS test.

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