Schwartz & Powell

DUI and Blood Alcohol Concentration

by Steven D. Powell Attorney at Law

blood testDUI is a serious crime with serious consequences to society and also to one accused of committing the crime.  A loaded driver can be every bit as dangerous as a loaded weapon.  If one is convicted of DUI he is looking at penalties—time in jail or prison for repeat offenders, fines, penalties, alcohol education, ignition interlock systems, probation, action by DMV against his driver’s license and probation or parole.  Perhaps the most painful financial penalty is the one the driver suffers from his auto insurance company.  You may be generally in good hands with your insurer, but if convicted they will do their best to strangle every bit of discretionary income out of you by raising your premiums steeply if not cancelling your insurance altogether and placing you in the expensive “assigned risk” pool of insureds. 

All this is possible because the Prosecution has police chemists who routinely testify that a driver’s blood alcohol is above .08 and the driver is therefore impaired or Driving Under the Influence (DUI).   These chemists work at the Ventura County Crime Lab.  This Lab is operated by the Sherriff’s office, the County’s main law enforcement agency  that also operates the Jail.  This is a bit ironic, that a chemist who works for the Sheriff convinces a jury to find a defendant guilty who then is sentenced to serve jail time in the Jail operated by the Sherriff’s Office.  Seems a bit like the fox guarding the hen house.  It certainly creates the appearance of impropriety and serious bias against the accused in favor of the prosecution.

The police chemist testifying for the prosecution will look at an .08 breath or blood test and testify the test result reflected the suspect’s BAC at time of driving and he will be aided by a rule of law that says if one tests at .08 or above within a few hours of driving that the driver is presumed to have the prohibited BAC.  The problem with this scenario is that the means of chemically testing a suspect’s blood are flawed. The breath machines used to test BAC may or may not be functional and accurate and blood testing machines may also skew results.  It is generally recognized that breath tests may routinely misread Blood Alcohol Concentration (BAC)  as much as .02 and blood tests can misread the blood tested as much as .01. 

As skilled lawyers we are able to drag this evidence from the police expert but grudgingly.  We usually must hire our own experts—who earn a lot less, what with liberal public employee benefits and substantial salaries—than the police chemists and who do not enjoy the stature juries tend to accord to the Prosecution’s police expert.  You can see, then, how the deck is immediately stacked against the accused in any BAC case such as DUI.

Another major problem arises from this truth: even assuming the accuracy of a BAC test, even though the jury is told about the rule of law allowing them to pretend or presume (unless the defendant proves otherwise) that a driver’s BAC when driving is the same as at time of test,  this is not necessarily so.  Alcohol  takes time to enter one’s blood.  If you drink some cocktails, jump in your car and are pulled over by an officer and tested according to the law, your BAC more likely than not is lower at time of driving than at the time of testing.  Again, we can drag this evidence out of a police expert witness but only with skill, experience and determination.  The best bet is to have a defense expert in the wings to explain this to the jury from the defense point of view because the police expert explains things only from the police point of view, which is not necessarily correct.

In 1986, when I was still a Deputy DA in Ventura, at the time trying a multitude of DUI cases, I served as an acknowledged consultant on law enforcement and prosecution of DUI for President Reagan’s Presidential Commission on Drunk Driving. I recommended laws prohibiting driving with a BAC (blood alcohol concentration) of .08 or above. The Presidential Commission on Drunk Driving adopted that recommendation and I stand by it.  People should not drive with an .08 BAC.  But I think we all assumed in adopting this position that the police would accurately test BAC, which is not universally true, and consider all factors relevant to BAC at time of driving, which is also just not universally true.  And, because of these problems, innocent people are routinely convicted by plea or jury of a crime they never committed because the playing field is not level.

Schwartz & Powell has a demonstrated record of leveling the playing field and winning not guilty verdicts and obtaining dismissals of DUI charges. We’ve been doing it for thirty years. We cannot ever promise you a specific result, verdict or compromise of your case, but we can promise a mature evaluation of your matter, proper assistance in handling your case and, if push comes to shove, a trial in which we bring our considerable experience to bear on the question of whether one drove with a BAC of .08 or above. 

If you or a loved one find yourself in a spot involving allegations of DUI or any case hinging on a determination of BAC or drug intoxication, call Schwartz & Powell.  Experience matters.

 

SCHWARTZ & POWELL

805.658.8955

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