The Burden of Proof is on….the Accused?

Posted by Lawrence Taylor on January 20th, 2013

Our drunk driving laws make it a criminal offense to drive a vehicle while under the influence of alcohol (DUI) or while having a blood-alcohol concentration (BAC) of .08% or higher. It is not, however, a criminal offense to be under the influence or to have a blood-alcohol concentration (BAC) of .08% while taking a breath test in a police station an hour or two after driving.

So how does the prosecution prove what the BAC was when the defendant was driving?

It’s a problem. You can try to guess what the BAC was in a DUI case by projecting backwards, using average alcohol absorption and elimination rates, but it’s only a very rough guess. The process is called retrograde extrapolation — a fancy name for trying to guess backwards.

The problem is that everyone has a different metabolism, and even a given person will metabolize alcohol at different rates depending on many variables. In one study, for example, researchers found a wide range of matabolism rates: some individuals can absorb alcohol and reach peak blood-alcohol levels ten times faster than others. Dubowski, “Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects”, Journal on Studies of Alcohol (July 1985).

As a result, scientists have concluded that the practice of estimating earlier BAC levels in DUI cases is highly inaccurate and should be discouraged. From the recognized expert in the field, Professor Kurt Dubowski of the University of Oklahoma:

It is unusual for enough reliable information to be available in a given case to permit a meaningful and fair value to be obtained by retrograde extrapolation. If attempted, it must be based on assumptions of uncertain validity, or the answer must be given in terms of a range of possible values so wide that it is rarely of any use. If retrograde extrapolation of a blood concentration is based on a breath analysis the difficulty is compounded.” 21(1) Journal of Forensic Sciences 9 (Jan. 1976).

So, Mr. Prosecutor, you’ve got a breathalyzer reading of .10% an hour or two after the driving and the scientists say you can’t accurately project that BAC back to the time of driving: if the blood-alcohol level was rising, it could have been a .07% or even lower. That kind of leaves you in a pickle. What do you do?

Simple: You just get the legislature to pass a law saying that the blood-alcohol when tested is the same as it was when driving.

What? But that’s not true: BAC constantly changes as alcohol is metabolized. How can we legally presume what we know is not true?

Well, yes, but we can never really know, can we? But it sure makes the prosecutor’s job easier, doesn’t it? Let the defendant try to prove what his BAC was an hour or two earlier.

That’s right: most states now have laws saying your BAC was the same 3 hours earlier — unless you can prove it wasn’t!  Typical is California’s law:

It is a rebuttable presumption that the person had 0.08% or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent, by weight, of alcohol in his or her blood at the time of performance of a chemical test within three hours after the driving”. Vehicle Code sec. 23152(b).

Wait a minute….What about the State having the burden of proof — proof beyond a reasonable doubt? How can the law simply presume guilt and force the defendant to disprove it? What about the presumption of innocence?

No problem: we already legally presume a person is under the influence if he has a blood-alcohol level of .08% — whether, in fact, he is or not. And he has the burden of proving he was not under the influence.

Let’s not get hung up on details. The important thing here is that we get these drunk drivers off the road, isn’t it?

  • While it's undeniably true that you're "guilty until proven innocent", especially in cases of DUI, I think it's imperative upon us to look into the reasons why this is. 
    Let's start by stating that the massive prison lobby and special interest groups like MADD Mothers are profiteering off the "DUI industry" at an exponential rate.  The Founder of MADD Mothers, Candy Lightner, resigned from the organization, citing that the group had become a "neo-prohibitionist" group that was more focused on political gains and profits rather than the reasons she had in mind when beginning the organization.
    Police are ever-increasingly under the pressure from their departments who institute arrest quotas, especially ones pertaining to DUI, since MADD Mothers has made it such a poignant topic.  Police seek overtime court pay, raises within the department both financially and in rank, as well as a potential political resume-builder. 
    Lastly, I personally know of a man in Michigan, a state run by the prison lobby, and one of the only states that offers no such thing as "good time"; the average inmate in Michigan serves approximately 120% of their sentence.  This man was never seen drinking and driving.  Police showed up to his condominium at 1:30 in the morning.  He was in his family room with two other friends of his, and they were drinking.  The police asked him if he had been driving.  This man, a graduate of an Ivy League university who did have prior DUIs, responded, "No.  Why, is something wrong?  Was there an accident somewhere?".   The three men had been home all evening.  The officer then left.
    3 months later, this gentleman received a postcard in the mail stating he was being charged with felony DUI.  The man went to court, befuddled. He left court after hearing his charge.  He then hired an attorney, who requested a preliminary examination.  The "witness" said he saw a car that he thought was weaving, but couldn't identify the person, and didn't know if the person was a male or female, and only had a description of the color of the car.  When asked what type of car it was, he didn't know; when asked if he followed the car, he said "Yes, but only until the car turned into the condominium association", which stretches a mile long.  After hearing this, the judge determined this was enough evidence to have the case bound over to circuit court — even though the defendant was one of only 5 or 6 people in the courtroom and he still couldn't identify him!
    The prosecutor then realized that they had forgotten to arrest the defendant.  So they allowed the man to turn himself into the jail, where the booked him.  The probation department recommended 6 months in a rehabilitation program.  His sentencing guidelines were 0-23 months.  The judge sentenced him to 46 months-10 years in state prison.  He would spend the next 46 months in prison, sleeping next to murderers and rapists.  Attorneys did nothing, and the appeals process is still ongoing, 6 years after the fact.  This tragedy took away more than 4 years of an innocent man's prime years of his life, while prosecutors, police, judges, and everyone involved gained political capital.
    This, and cases like the ones Utah State Trooper Lisa Steed — the 2007 "Trooper of the Year" because she accumulated 200+ DUI arrests that year — have led many to believe that the system needs a complete overhaul, and that the prison lobby as well as MADD Mothers need to be under heavy scrutiny, as do any and all politicians who accept money from them.

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