When a
police officer conducts a DUI investigation on a driver, whether at a DUI CHEKPOINT
or after a traffic stop, the officer will inevitably ask the driver a series of
questions about when they started driving, where they started from and what and
when the driver drank and ate. Any Orange County DUI lawyer will tell you NOT to answer these questions. The
questions are designed to prevent the driver from using the “RISING DEFENSE”
after they have been charged with DUI. Moreover, the questions are designed to
place you behind the wheel long before the officer saw you drive which provide
the prosecutor a much better chance to convict you of a DUI.
You see, the
level of alcohol in someone’s blood is always changing. As it moves from the
stomach to the blood you are in the “absorptive” phase and your blood-alcohol
level is rising. And alcohol is constantly being eliminated from one’s blood
stream. When elimination is greater than absorption, you are in the elimination
phase. So, as any Orange County DUI Attorney will tell you, a driver’s
blood-alcohol level is always changing.
Once the
officer finishes his DUI investigation, which usually includes an extensive
interview about any food, alcohol and drugs you may have ingested as well as
any medical conditions which may skew a chemical test—such as diabetes—the officer
will make a decision whether to arrest you. This DUI investigation usually
takes about 30 minutes and, once you are arrested, you must submit to a blood test or a breath test. If the officer must take you to the
station for a test, then the test is usually given 90 minutes to two hours
AFTER the time of driving. Your DUI Lawyer will tell you that this time delay is important because the
real issue is what your blood-alcohol level was when you were DRIVING, not when
you were in the police station.
So, for
example, if a blood test reveals a driver has a blood-alcohol level of a 0.06%
two hours AFTER driving, you might expect the case to be dismissed. But, in
fact, it probably will not be dismissed. You see, the toxicologists at the
Orange County Crime Lab will work backwards (extrapolate) from your
blood-alcohol result two hours later and come up with a probable blood-alcohol
level at the time of driving. DUI Attorneys in Orange County know the “average” person eliminates
alcohol from their system at a rate of 0.015% per hour. So, working backwards
from a blood-alcohol level of 0.06%, and assuming a standard elimination rate,
the driver’s calculated blood-alcohol level at the time of driving two hours
earlier would be 0.09%. Since this calculated level is above the legal limit of
0.08%, the DISTRICT ATTORNEY would likely proceed with prosecution on this low blood-alcohol
level relying on extrapolation.
The use of
this “science” in DUI cases of course is nowhere near perfect. It assumes that
every person eliminates alcohol at the same level. This fallacy must be exposed
to a jury by a skilled DUI Attorney in order to educate the jury and to
avoid a DUI conviction. If you have questions about effective DUI defenses or DUI
penalties call The Law
Offices of EJ Stopyro at (949) 559-5500.
You can consult with an experienced Orange County DUI Attorney for free. You can also go to our
website at www.EJEsquire.com. Our main
office is located at 32072 Camino Capistrano, 2nd floor, San Juan
Capistrano, CA 92675.
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