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.  


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:


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.



Increased Penalties for a High BAC

Monday, October 26th, 2015

When it comes to a California DUI, sentence there is a difference between driving drunk and driving really drunk.

It is not uncommon for a person to be caught driving drunk with a blood alcohol content of more than 0.15 percent. Unfortunately, it is also not uncommon for a person to be caught driving drunk with a blood alcohol content of more than 0.20 percent.

When this happens, in addition to being charged with the normal California DUI charges under California Vehicle Code section 23152 (a) and 23152(b), the prosecutor will also include what is known as a “special allegation” in the complaint. As a result of the “special allegation,” the person arrested for a California DUI is now actually facing increased penalties.

California Vehicle Code section 23578 sets forth the special allegation when a person’s blood alcohol content is 0.15 to 0.19 percent.

“In addition to any other provision of this code, if a person is convicted of a violation of Section 23152 or 23153, the court shall consider a concentration of alcohol in the person’s blood of 0.15 percent or more, by weight, or the refusal of the person to take a chemical test, as a special factor that may justify enhancing the penalties in sentencing, in determining whether to grant probation, and, if probation is granted, in determining additional or enhanced terms and conditions of probation.”

In my experience, there are a number of common enhanced penalties that a prosecutor seeks when there is a special allegation that a person’s BAC was 0.15 or more. Those enhancements include, but are not limited to, a longer DUI program, AA meetings as a condition of probation, AA meetings as a condition of being released on their own recognizance pending the outcome of their case, MADD’s Victim Impact Panel, and/or a Hospital and Morgue Program.

When a person’s blood alcohol content is 0.20 percent or more, California Vehicle Code section 23538(b)(2) provides:

“The court shall refer a first offender whose blood-alcohol concentration was 0.20 percent (.20%) or more, by weight, or who refused to take a chemical test, to participate for at least nine (9) months or longer, as ordered by the court, in a licensed program that consists of at least 60 hours of program activities, including those education, group counseling, and individual interview sessions described in Chapter 9 (commencing with Section 11836) of Part 2 of Division 10.5 of the Health and Safety Code.”

Although section 23538(b)(2) specifically mentions a 9-month DUI program (called AB1353), there’s a good chance that the prosecutor will be pushing for an 18-month program (called SB38). The longer DUI program would be in addition to any of the other increased penalties I mentioned above.

When a California DUI case includes special allegations such as these, it is important and especially advantageous to the DUI-arrestee that an experienced California DUI attorney not only fight the underlying DUI charges, but the special allegations as well.  




Is a Marijuana Breathalyzer in the Offing?

Monday, September 14th, 2015

Many are saying that California will be the next state in the Union to legalize recreational marijuana. If their predictions are correct, that would make California the sixth state to do so. Currently, Washington, Colorado, Alaska, Oregon, and Washington D.C. have all legalized recreational marijuana. Although California has not yet legalized recreational marijuana, it has decriminalized marijuana and allows the use of medical marijuana for medical purposes.

With California and other states on the cusp of legalization of recreational marijuana, law enforcement agencies are clamoring for technology that will help them determine how stoned someone is for purposes of driving under the influence.

In June of this year, Cannabix Technologies Inc., a company based out of Vancouver, issued an update on what it hopes to be the first widely used marijuana breathalyzer. According to Cannabix’s website, a prototype has been developed and is currently undergoing testing. According to the company’s founder, retired Canadian police officer Kal Malhi, the device will be able to detect the use of marijuana within two hours.

Lifeloc, a Colorado-based company which already makes and distributes alcohol breathalyzers is also in the race to develop a marijuana breathalyzer.

"I think the first breathalyzer on the market will be a simple ‘yes’ or ‘no’ for the presence of THC at the time of the test, and in that sense it won’t provide a quantitative evidential measure," Barry Knott, the chief executive of Lifeloc, told Reuters.

If developed, the new marijuana breathalyzer would replace the rather inefficient blood test to determine how much THC (tetrahydrocannabinol), the active component of marijuana, is in a person’s system.

Many states that have legalized marijuana either recreationally or medically have set a "per se" limit, or bright line rule on how much THC can be in a person’s system while driving ranging from 0 to 5 nanograms per milliliter of blood.

It is well known that the "per se" limit for how much alcohol can be in a person’s system is 0.08 percent blood alcohol content. With alcohol, there is a fairly strong correlation between blood alcohol content and intoxication. In other words, there is a high probability that a person with a 0.08 blood alcohol content is feeling the effects of alcohol intoxication such that they cannot operate a vehicle as a reasonable and sober person would.

So can the same be said for nanograms of THC per milliliter of blood? Unfortunately, no.

Notwithstanding "per se" THC limits in many states, the correlation between nanograms of THC per milliliter of blood and marijuana intoxication is extremely weak.

Unlike alcohol, THC is fat soluble which means that it leaves the body at a much slower rate. In fact, chronic users of marijuana can have THC in their blood weeks after use. Alcohol, on the other hand, is water soluble and dissipates at a rate of about 0.015 percent per hour. This means that, depending on how much alcohol someone drank, a person can sober up within hours.

This means that someone who has smoked marijuana three weeks ago can still be arrested in states with a "per se" THC limit even though they are no longer under the influence of marijuana and perfectly sober.

It is unclear whether the marijuana breathalyzers currently being developed will quantify how much THC is in a person’s system. Not that it matters. The amount of THC in a person’s system has nothing to do with how intoxicated they are and, consequently, how much of a danger they are to the roads.

Until a marijuana breathalyzer can determine how intoxicated someone is, we run the risk of arresting sober people for DUI. 


The DUI Turns 118 Years Old

Monday, September 7th, 2015

September 10th marks the 118th birthday of the DUI arrest. As September 10th approaches, I would be remiss not to post a little bit of history of the DUI and what it has become since.

118 years ago, on September 10th 1987, a London taxi driver by the name of George Smith became the first person to be arrested for driving under the influence after he crashed his vehicle into a building. Smith pled guilty and was fined 25 shillings. By today’s standards, 25 shillings amounts to about 40 British pounds which is about 67 U.S. dollars.

Today, DUI laws seem almost as ubiquitous as cars themselves. That, however, was not always the case. Prior to 1910, no state had any law against driving drunk. That changed when, in 1910, New York became the first stated to adopt a law against driving under the influence of alcohol. Of course, at that time, science had not allowed law enforcement to know what a person’s blood alcohol content was. Consequently, the law could not provide a per se blood alcohol content limit like we have today. Rather, a determination of whether a driver was intoxicated was left to the interpretation arresting officer.

The difficulties facing law enforcement in determining whether a person was drunk and, if so, how drunk took a step forward in 1938. That year Indiana University professor, Rolla Harger invented the “drunk-o-meter” in an attempt to quantify intoxication. The person being tested would blow into a balloon. The balloon was then attached a tube containing chemicals and the air in the balloon released. The alcohol in the air from the balloon would react to the chemicals and create a color. The higher the alcohol content, the greater the change in color.

The “drunk-o-meter” became the predecessor to the modern breath test. In 1954, Robert Borkenstein, chairman of Indiana University’s department administration, invented a more portable device than Harger’s “drunk-o-meter” and that also actually measured a subject’s blood alcohol content. The device would come to be known as the “breathalyzer.”

In 1939, Indiana became the first state to pass a law that made it illegal to drive with a specific blood alcohol content. At that time, the legal blood alcohol limit was 0.15 percent. Other states began to follow suit.

The late 70’s and early 80’s saw an influx of public awareness on the dangers of drunk driving. Much of this awareness was due to the creation of the group Mothers Against Drunk Driving (MADD) in 1980. The group was founded by Candy Lightner after her 13-year-old daughter was killed by a drunk driver. The group has since pushed for tougher legislation regarding DUI laws and penalties.

MADD’s efforts did indeed begin to impact DUI laws throughout the country. In 1984, The National Minimum Drinking Age Act was passed. It required that states pass legislation raising the legal drinking age to 21.

MADD’s influence also partly led to the lowering of the legal blood alcohol limit to 0.08 percent in all states.

In 2013, the National Transportation Safety Board (NTSB) voted to recommend that states lower their blood alcohol limits to 0.05 percent. Whether states adopt the recommendation is yet to be seen.

Currently, in California the legal limit is 0.08 percent. A person can also be charged and convicted of a DUI if they are “under the influence” even though they may not be above a 0.08 percent.

The statutory minimum sentence for a first-time DUI conviction is three years of informal probation, $390 in fines and fees plus penalties and assessments, and a 3-month DUI program. While this is the minimum, punishments may also include AA meetings, a MADD-sponsored “Victim Impact Panel,” a “Hospital and Morgue Program,” or CalTrans.