Refuting the allegation of the police on the commission of driving under the influence is never easy even for a well-experienced criminal defense lawyer especially when the prosecution has sufficient evidence to prove the crime charged. It is often the results of the field sobriety and chemical tests which can hardly be suppressed unless there were violations done at the time of stop or arrest by the officers. Without which, however, the better recourse for the defense is to lower down the charge or sentence by entering into or accepting plea bargaining agreement, though not always possible as there are cases which cannot be qualified for such. Thus, if a plea bargain is never an option and the case would likely lead to harsher penalties, the defense could find it wise to utilize the “rising blood level alcohol” defense:
What is all about the Rising Alcohol Defense?
As specified in the statute on DUI, the alcohol concentration at the time of driving is what matters or taken into account when prosecuting an alleged offender rather than at the time when the test was administered. The law here presumes that if the examination was conducted within three hours of driving, the suspected driver should have .08% or higher BAC level at the time of driving if in case the test result revealed the same amount or more in the blood. Given this, Sarasota dui lawyer can use the rising blood level alcohol defense if the BAC was below the aforementioned legal limit while driving, but consequently rose at the time of breath or blood test
Analysis of Time and Alcohol Absorption
Both the time of test administration and the absorption of alcohol are considered critical elements in a DUI case as the judge would take them into account when giving merit to the said defense or reject it after thorough analysis. This is primarily because of the scientific explanation regarding the matter; specifically, the consumption of alcohol does not instantly impair the person as it would still take time to reach the brain through the small intestine and into the blood. And yet, the absorption usually is not completed only for forty-five minutes to two hours after consumption and may even be delayed by the food taken; however, it should be noted that the presence of alcohol in the blood can be immediately detected after drinking.
Pseudo Scientific Formula by the Prosecution
If the defense so decides to utilize the rising blood level alcohol defense, the prosecution may counter it with a pseudo scientific formula called “retrograde extrapolation” intended to calculate the level of alcohol in the person’s blood at the time of driving based on the result of chemical examinations. Nevertheless, it is noteworthy that such extrapolation is considered to be a mere estimate without scientific certainty in measuring the exact BAC of the suspected person at the time of driving. Further, there are allegations that it is fraught with errors given the inconsistencies to other areas of DUI tests.
Fallacies of Retrograde Extrapolation
As specified in the statute on DUI, the alcohol concentration at the time of driving is what matters or taken into account when prosecuting an alleged offender rather than at the time when the test was administered. The law here presumes that if the examination was conducted within three hours of driving, the suspected driver should have .08% or higher BAC level at the time of driving if in case the test result revealed the same amount or more in the blood. Given this, Sarasota dui lawyer can use the rising blood level alcohol defense if the BAC was below the aforementioned legal limit while driving, but consequently rose at the time of breath or blood test
Analysis of Time and Alcohol Absorption
Both the time of test administration and the absorption of alcohol are considered critical elements in a DUI case as the judge would take them into account when giving merit to the said defense or reject it after thorough analysis. This is primarily because of the scientific explanation regarding the matter; specifically, the consumption of alcohol does not instantly impair the person as it would still take time to reach the brain through the small intestine and into the blood. And yet, the absorption usually is not completed only for forty-five minutes to two hours after consumption and may even be delayed by the food taken; however, it should be noted that the presence of alcohol in the blood can be immediately detected after drinking.
Pseudo Scientific Formula by the Prosecution
If the defense so decides to utilize the rising blood level alcohol defense, the prosecution may counter it with a pseudo scientific formula called “retrograde extrapolation” intended to calculate the level of alcohol in the person’s blood at the time of driving based on the result of chemical examinations. Nevertheless, it is noteworthy that such extrapolation is considered to be a mere estimate without scientific certainty in measuring the exact BAC of the suspected person at the time of driving. Further, there are allegations that it is fraught with errors given the inconsistencies to other areas of DUI tests.
Fallacies of Retrograde Extrapolation
As a defense to the disputable calculation by the prosecution and support the rising blood level alcohol defense, the defendant’s lawyer can demonstrate the fallacies of the said extrapolation. Specifically, it can be argued that such depends on the presumption that alcohol absorption is complete and the rise of alcohol level is in a steady manner or the same for all persons.
Given the above-mentioned elucidations on the rising blood level alcohol defense, it would thus be valid for you to presume that you can still do something to avoid harsh penalties for the drunk driving offense.
