It may be possible to win your Michigan DUI case by using the rising blood alcohol defense.
When we look at the crime of drunk driving in Michigan we see that it is called OWI which of course means “Operating/While/Intoxicated.” When thinking of the increasing blood alcohol defense we are addressing the “while” part of while intoxicated. Since evidentiary chemical test samples (breath or blood) are never taken at the roadside, based on the facts and circumstances of the case is it possible that the driver was not drunk at the time he/she was actually driving?
In order to understand this issue/defense it is critical to understand the science of alcohol metabolism, which is governed by the absorption, distribution and elimination of alcohol. It is also important to obtain a precise drinking history so that the time-course calculation of the alcohol consumed can be made.
The viability of this defense will depend on several factors, including the time of the last drink in relation to the time of the chemical test. Thus, it will also be important to have an accurate time line including (at a minimum) when the alcohol consumption started and ended, when the driving started and ended, and when the first chemical test sample was collected.
A proper analysis of this defense requires also an understanding of retrograde extrapolation, which is beyond the scope of this writing. Practitioners interested in raising this defense are encouraged to obtain one of the many resources on retrograde extrapolation so that this science can be well-understood. A failure to do so may lead to a failure of this defense.
The following is an excerpt from Mr. Barone’s Defending Drinking Drivers (James Publishing).
§204 Rising Blood Alcohol Defense
The exact time of full absorption of consumed alcohol is always difficult, and at times even impossible, to determine. But, most experts will agree that a forward or backward estimate of BAC requires an accurate determination of when full absorption occurred. The rising blood alcohol defense is based on this scientific premise, i.e., that the client should not be affected by alcohol when it is still in his stomach. This is because it takes time for the alcohol to be absorbed from the stomach into the bloodstream; if a person drinks alcohol and then immediately submits to a chemical test, the results should show no alcohol in the blood. Until the alcohol is absorbed, it should not have an effect on the defendant. The rising blood alcohol defense raises the question of what the defendant’s blood alcohol content was at the time of driving, rather than at the time of the blood alcohol test. In this sense, the defense uses the principles of retrograde extrapolation for the benefit, rather than detriment, of the accused.
The rising blood alcohol defense can only be used in those circumstances where you have competent testimony to demonstrate that the defendant was drinking shortly before his arrest. Additionally, a viable rising blood alcohol defense requires good or very good performance on any field sobriety tasks that may have been administered. Combined, these facts will allow you to effectively argue to the jury that the defendant’s blood alcohol content at the time of driving was likely less than .08% even though the actual test was greater than .08%.
If you have the appropriate facts, you might argue to the jury, consistent with case law, that the charge is driving while intoxicated, not being intoxicated at the police station. If you can demonstrate uncertainty regarding the defendant’s blood alcohol content at the time of driving, it will be difficult for the state to sustain its burden of proof that the defendant was either driving under the influence or driving with an illegal blood alcohol content. All the state will have proved was the defendant’s blood alcohol content at the time of the test.
The rising blood alcohol defense may not be appropriate in certain jurisdictions where the statute allows for any tests taken within a certain time, usually two hours from the arrest, presumptively to establish the defendant’s blood alcohol content at the time of driving. See Davis v. Commonwealth, 381 S.E.2d 11 (Va. App. 1989) (Virginia’s per se drunk driving statute creates a presumption that a post-driving BAC test result of .10 represents the motorist’s blood alcohol content at the time of driving). The United States Supreme Court has also refused to grant certiorari in a Minnesota Supreme Court case upholding such a statutory presumption. Chirpich v. Minnesota, 481 U.S. 1015, 107 S. Ct. 1891 (1987).
It is the author’s opinion that jurors do not typically find the rising blood alcohol defense to be particularly persuasive. This is because jurors tend to intuitively believe just the opposite, which is that the driver’s BAC was higher at the time of driving. We know scientifically that this is not true, and may even have the facts to “prove” it, but any defense that requires disabusing the jurors of what they believe to be “common sense” should be used only where no other plausible defense exists.
It should also be noted that Michigan’s drunk driving laws were changed in 2003 so that there is now an “inference” that the blood alcohol level was the same at the time of driving as it was at the time of the test. This of course is not the same as a presumption, and is not mandatory.
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