BLOOD ALCOHOL LEVEL AT THE TIME OF DRIVING
An issue that commonly occurs in DUI cases concerns the issue of the party‘s blood alcohol level at the time of driving, which is the important point in time in a legal sense. Obviously, a person is not and cannot be tested at the time of driving. The test of a person‘s blood alcohol level always occurs at some later time, often significantly later. In some cases, such as those involving accidents, the blood alcohol testing may occur hours later.
Our office had one such case that occurred in the desert between Palm Springs and the Colorado River. The blood alcohol test occurred three and one-half hours later, due to the travel time of the officer to and from the location, and the length of the investigation.
The problem with later testing is that a person‘s blood alcohol level does not stay constant. A person‘s blood alcohol level rises and falls over time, as the alcohol enters the bloodstream, and the liver starts the process of eliminating it. The rate at which a person‘s blood alcohol level rises and falls depends on the circumstances in which the alcohol is consumed, and the person‘s own unique metabolism. Factors affecting the process include whether a person has food in their stomach, and the manner and rate in which the alcohol was consumed. Additional factors include the person‘s sex, height, weight, body type, and history of drinking. Scientists now believe that there may be other unknown factors involved in the process.
In order to try to get around this timing issue, the "experts" that work for the state use a process called "retrograde extrapolation". This is a process that uses a series of calculations, based on reported drinking history, to try to "figure back." Obviously, this process is riddled with problems, even more than you might realize at first glance.
A Swedish scientist developed this process before World War II, by testing a small number of Swedish college students. Our state governments seized on this, and ustilize this process to this day. They base their calculations on a series of assumptions based on these old studies, and the averages that those studies reported. Individual people are not average, however, and today‘s Americans of all ages, sizes and ethnic backgrounds do not correspond to a small group of pre-World War II Swedish students.
More recent studies, of which most government "experts" are unaware, or rejected out of hand, show the unreliability of this process. The numbers seen vary wildly from the old study on which the government relies. The modern studies prove, and even many government people will now concede, that the retrograde extrapolation process overestimates the blood alcohol level of more than 30% of people tested. This can result in innocent Americans being wrongly convicted by the government.
Do you need the services of an exceptional dui attorney in Southern California including Los Angeles and Orange County? The dui lawyer in our Orange County office has extensive experience in criminal law as both a high profile prosecutor and public defender. Attorney Mike Brewer can help. Contact us for more information.