Clients often think that if they test at a certain level on a DUI the case is over. Often a friend, a pseudo lawyer will advise them it is no use fighting a case if you are over the limit. This is far from the truth. What matters most in a DUI case is the blood alcohol level at the time of driving and not at the time of testing. Often we attack this by looking at the timeline of the stop and applying the science of alcohol absorption and elimination. Let’s take a look at this.
Absorption – Alcohol does not affect you immediately. It absorbs into your body which takes time. The alcohol is absorbed from your stomach into the small intestine and the blood. Depending on the amount of food in your stomach, the absorption rate will vary. Even if you drank 12 beers and weigh only 135 pounds, you would likely not feel the full affect of the drink upon drinking. Furthermore, when a breathe test is at play at the absorption stage, the range (what we call it) variability (what scientist cal it) or margin of error (what the state will call it) can vary up to 100%.
In order to show that a person is in the absoption stage, the state will use your dirnking pattern and eating pattern against you. This is why I tell all my clients to lack of a better word, “shut the f@$% up!!!” Clients often times will think the right thing to say is I drank a few hours ago. This screws them over and makes my job harder to put on a rising defense. However, the flip side is cops will often lie and say the client stopped drinking half an hour ago which helps me!
The other thing the state will need is a another test. This test is subsequent to the first one and is usually the EPAS (evidential) test. This test is will put a second reference on blood alcohol level. Sometimes, this test will be higher which makes my job easier because I can show a riser. However, sometimes it is lower then I would have to play with the time line and calculate alcohol elimination for the purpose of ascertaining whether I can show that enough time has passed to show that my client has absorbed alcohol and just began to eliminate and whether there is enough time that passed between the test to account for the burnoff.
Finally, It’s my job to play interference when the state plays the retrograde extrapolation card. This is a fancy term used to impress people. They will try to calculate backwards and predict your alcohol level at the time of driving. However, there are a lot of variables at play and this science is based on the average person. Not everyone is average! There is a lot of science when it comes to defending these cases.