Monthly Archives: November 2015

What is the Rising Blood Alcohol Defense?

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.  

State Supreme Court: Punishing Refusal to Submit to Blood Test Voids Consent

Two days ago, I posted about the growing trend of states to criminalize refusals to submit to blood-alcohol testing in DUI cases.  See Is It a Crime to Refuse to Give Blood in a DUI Arrest?   This punishment for refusing to incriminate yourself seems yet another example of what I’ve repeatedly referred to as "The DUI Exception to the Constitution".

And, coincidentally, exactly two days ago the Hawaii Supreme Court handed down a decision reversing a DUI conviction — on the grounds that the defendant’s consent to a blood-alcohol test was invalid because it had been obtained through coercion.  The "consent", the Court said, was not freely and voluntarily given since it was given out of fear that refusing would result in criminal punishment.

State Supreme Court Ruling May Affect Hundreds of DUI Cases

Honolulu, HI.  Nov. 25 —  A Hawaii Supreme Court decision today could affect hundreds of outstanding drunken driving cases across the state — and potentially force authorities to reconsider whether those arrested for drunken driving in Hawaii in recent years gave proper consent before they took a blood-alcohol test.

The high court’s decision centers on an isolated drunken-driving case, the State of Hawaii vs. Yong Shik Won. Won’s 2011 driving-under-the-influence conviction relied on a breath test that showed he had a blood-alcohol content of 0.17. That’s above the state’s 0.08 legal limit to drive.

Won consented to the test after signing his initials on a consent form that said he faced up to $1,000 in fines and 30 days in jail if he refused to submit to it, according to court documents. The form mirrors a state law enacted that same year that made it a misdemeanor crime to refuse to submit to such breath tests, as well as blood or urine tests, to determine if someone was legally intoxicated.

The law is similar to statutes in other states across the country, officials say…

“If you don’t consent to this search, you’re going to go to jail for 30 days. And that’s what they told people as they did all this.” (Won’s attorney) said today, referring to blood, breath and urine tests.

A three-member majority of the state’s highest court ruled in Won’s favor, arguing that Won did not voluntarily consent to the breath test used in his DUI conviction…

As the Court wrote in its lengthy opinion:

Under our law, a person has a statutory and  constitutional right to refuse to consent to a bodily search unless an exception to the search warrant requirement is
present. In this case, the defendant was informed by the police of his right to refuse to consent to a search, but he was also told that if he exercised that right, his refusal to consent would be a crime for which he could be imprisoned for up to thirty days…


Is It a Crime to Refuse to Give Blood in a DUI Arrest?

Let’s say you’re arrested for drunk driving, handcuffed and thrown in the back of the police car. The arresting cop then tells you that you have to submit to a blood test: You will have a needle injected into your arm and a blood sample will be withdrawn to be later analyzed for blood-alcohol concentration (BAC).  

You will be booked for driving under the influence of alcohol.  However, if the blood sample later shows a BAC of .08% or higher, you will be charged not only with DUI, but also with a second offense:  driving with a BAC of .08%.  

You are afraid of needles and refuse, insisting instead on being tested with a breathalyzer.  Result: The cop books you for DUI — and for refusing to submit to blood-alcohol testing.

Can you be prosecuted for refusing to give a blood sample?    

In many states today, refusing to be tested is, in fact, a separate crime — and you can be prosecuted for both DUI and for refusing.  The courts have held that there is no Fifth Amendment right to refuse to incriminate yourself by submitting to BAC testing.  In other states, it is not a crime, but can carry other sanctions — commonly, a longer driver’s license suspension.

But what if the cop does not give the suspect a choice — of a blood or breath test?  What if, as increasingly happens — and has hypothetically happened to you in this case — the cop demands a blood sample?  Does that change things?

Minnesota: DUI Blood Draw Refusal Cannot Be Criminalized

The Newspaper, Oct. 22 — Minnesota motorists cannot be held guilty of a crime if they refuse to allow a police officer to draw their blood on demand. A divided state Court of Appeals panel came to that conclusion last week after applying the reasoning found in the US Supreme Court’s McNeely decision, which struck down forced motorist blood draws.

Todd Eugene Trahan was pulled over after midnight on October 24, 2012, after a Ramsey County sheriff’s deputy noticed his erratic driving. After pulling Trahan over, it was obvious he was intoxicated. Trahan had a long history of driving under the influence (DUI) convictions. He was taken to a jail cell where he declined to allow a blood draw…

A judge sentenced Trahan to five years in prison for first-degree refusal. Under Minnesota law, it is a crime to refuse to submit to a blood, breath or urine test. Initially, the Court of Appeals found the law quite clear and upheld Trahan’s conviction, but the Minnesota Supreme Court told the lower court to reconsider.

The appellate court found in its second look at the case that a police officer could not have taken Trahan’s blood without obtaining a warrant from a neutral magistrate under the Fourth Amendment, as police had no valid excuse not to seek a warrant…

The court majority found the blood test refusal statute failed the strict-scrutiny constitutionality test because there are ways to get drunk drivers off the road without criminalizing the blood draw refusal.

"Police may offer a breath test to a suspected drunk driver and then, if the test is refused, the state may charge the person with the crime of test refusal," Judge Halbrooks explained. "The state may also prosecute a driver for driving under the influence without measuring the alcohol concentration or amount of controlled substances in a person’s blood. And when time allows, police can secure a search warrant to test the person’s blood."

The court made a distinction between the intrusiveness of a blood test and a breath test in finding the breath test refusal could still be criminalized. 

Not All Drunk Drivers are Alcoholics

For as much education (…and a rigorous one at that) as lawyers have to go through to practice law, it sometimes amazes me that some attorneys still lack some very basic and common sense. A recent interaction with a high ranking prosecutor reminded me of this and prompted me to write this blog

Not all drunk drivers are alcoholics.

The case that prompted said interaction with the prosecutor involved a drunk driver who caused a collision. The driver’s blood alcohol content was admittedly high at a 0.20 percent. After discussing the matter with the prosecutor, her reaction was "Well, his blood alcohol content was a 0.20 and he caused this crash, so he clearly has a drinking problem."

As lawyers, we are trained to think logically. In fact, the Law School Admission Test (commonly referred to as "LSAT") devotes one third of the exam to specifically test the logic of would-be law students. This portion of the exam was suitably called "Logic Games." This is exactly why it was such a shock to hear that conclusion come from an attorney with so much authority behind their position.

And this was such an obvious logical flaw; the "False Cause Logical Fallacy" to be specific. The name might not sound familiar, but how the fallacy works certainly will.

A causes B when there is no causal relationship exists or when there is merely a correlation between A and B.

The drunk driver in my case was not a heavy drinker nor was he a regular drinker. He drank occasionally when he was out to dinner or with friends. It can hardly be said that he had a drinking problem. He merely made the poor decision to drive after one of his infrequent drinking occasions.

In 2008, a study was published in the journal Alcoholism: Clinical & Experimental Research which suggested that almost half of who drove while intoxicated were only occasional drinkers.

Medical epidemiologist at the U.S. Centers for Disease Control and Prevention, Dr. Nicole T. Flowers along with her colleagues analyzed data from a 2006 survey where more than 350,000 adults were questioned about behavioral risks such as drinking and drunk driving. They found that 84 percent of drunk drivers had been binge drinking. "Binge drinking" was defined as four or more drinks in one sitting for women and five or more drinks in one sitting for men.

The researchers, however, also identified "heavy drinkers" as women who consumed more than one drink a day and men who consumed more than two drinks a day. And after categorizing the two groups, they found that binge drinkers who were not heavy drinkers made up 49 percent of those who drove while under the influence.

While I’ve devoted my career to defending drunk drivers, I understand that drunk driving is a problem and I would never condone it. But I also understand that people are people who will always make mistakes.

So here’s my plea to anyone finding themselves agreeing with the prosecutor’s conclusion: Please don’t let your social distain for drunk driving affect your ability to think logically and make judgments about a person without knowing the individual circumstances of that person or their case.

Cop Too Drunk to Receive MADD Award

And in today’s "Who will guard the guardians?" department, this recent news article from USA Today…..

Florida Cop Turns Up Drunk to Collect Mothers Against Drunk Driving Award

Tampa, FL.  A Florida police officer who was due to be honored at a Mothers Against Drunk Driving conference turned up drunk to collect his award, according to local media.

So wasted, according to an internal affairs investigation, that he was found wandering in a hotel hallway stripped to his underwear. He also was described as "staggeringly drunk" by a witness at the Friday night banquet where he was set to receive the MADD accolade.

Records obtained by two Tampa TV stations show that Michael Szeliga, a deputy from neighboring Pinellas County, packed a bottle of Jameson Irish whiskey in his patrol car before driving across the state to the Hyatt Regency Pier 66 Hotel in Fort Lauderdale with two other deputies.

They were there in July for two days of training to combat drunken driving. Szeliga was also supposed to receive a MADD decoration for making more than 100 DUI arrests…

Or would that be in the "Physician heal thyself" department?