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Blood Test or Breathalyzer in CA? Which test should I take?

Blood Test or Breathalyzer: Which Test Makes It Easier To Fight Your DUI?

I used to say that it didn’t matter which test you took, blood or breath, because both of the tests were subject to attacks based on scientific problems with the tests themselves.  As a result of the recent decision of the California Supreme Court in People v. Vangelder, I have changed my recommendation.  I now recommend that people who have been arrested for DUI choose a blood test as their implied consent test.

The reason is that a lot of the problem with breath testing is that it doesn’t directly measure the amount of alcohol in your blood. Alcohol in your breath does not affect your ability to drive, either physically or mentally. Only alcohol in your blood does. If you are absorbing (which can happen for up to 6 hours after drinking) the amount of alcohol in your breath is much higher than the amount of alcohol in your blood.

The Vangelder decision has done away with most attacks on breath.

The California Supreme Court, in a decision that flies in the face of science and due process, has said that when the legislature wrote the DUI law all of the problems with breath testing were known and the Court must assume the legislature knew about the problems when they wrote the law the way they did. The Court also said since the machines used to test breath in California are on the Federal approved products list, the problems inherent in their design are off-limits for attack. The problem is that there is no requirement that products on the list be scientifically tested.

Still, the Court left open an avenue of attack, but it’s hard to use because you need the right expert to testify.  The Court has said that you can attack the specific machine when it was not used properly.   When dealing with a breath test, a proper defense has to be carefully laid and it is much easier to attack the fermentation that occurs in blood taken by cops.

The method by which blood is collected and measured is discussed in my article How Blood Testing Works.

The fermentation problem is discussed in my article Fermentation: The Big Problem With Blood Tests.

The problem with breath testing is discussed further in my article Breath Test Science in DUIs?

If you have any questions about whether to take a blood or breath test at all,  how to defend against them, which test to take or DUI in general:

Call me at (213) 479-5322.  If you have an opinion, please leave a comment.

Problems With the CA DUI Blood Test: Fermentation and Contamination.

The first problem with blood testing for alcohol is that it’s impossible to tell how much alcohol was present at the time of the blood draw and how much alcohol was created by later fermentation of the sugars in blood by microorganisms. In other words, the microorganisms naturally present in the blood begin to produce alcohol in the sample.

Chemical Model of DUI Blood Test Fermentation

Chemical Model of DUI Blood Test Fermentation

What happens while the blood is stored is that the glucose (sugar) naturally occurring in the blood is converted by microorganisms (Candid Albicans and Saccharomyces Ellipsoideus, among others), through the process of fermentation, to alcohol.  Fermentation is a fancy name for eating.  These microorganisms eat the sugar, remove energy from the sugar and leave carbon dioxide and alcohol as waste products. Studies show that over .20% BAC can be produced in improperly stored samples.

When the blood is drawn, if it is not done by accepted medical practices, the sample can be contaminated.  Simply using a non-alcohol sterilizing agent on the area where the blood is drawn is not enough to prevent contamination.  Improperly sterilizing the area can cause contamination.

Even if the area of the blood draw is properly sterilized, microorganisms present in the blood can cause  fermentation.

A preservative/anti-coagulant is supposedly added to blood drawn by the cops, but no lab in California tests for the presence of preservative/anti-coagulant.  So we never know if it was present in the proper amount or if it was properly distributed in the sample. In fact, breweries add the preservative supposedly used by law enforcement to their beer to ensure that only the right microorganism ferments their beer.

Once collected, the sample is supposed to be stored at or near freezing (32 F) and the test is supposed to be performed with 7 days to minimize fermentation. This is rarely, if ever, done.The sample is usually stored for 4 weeks, unrefrigerated.

Another problem is that the sample can never be proven by the State to contain only alcohol present before the blood was taken from the body.  When the chromatograms of the blood tests are reviewed it is often shown that acetaldehyde is present.  Acetaldehyde is a precursor to alcohol produced in the microorganism fermentation process  after the blood is taken.

In addition to the fermentation that takes place post-draw, there can also be further contamination that can be seen in the peaks in chromatograms.  A proper peak is symmetrical and shows only alcohol.  An improper peak is broad  or has a front or tail that is not symetrical. An improper peak is evidence of contamination in the sample.  It means that there is more than one volatile organic compound  in the tube at the same time and not only alcohol.  So the test reads higher in alcohol than it really is.That means that the State can never prove what the BAC is because the amount that is coming out that is alcohol can never be determined.

Read more about How Blood Testing Works.

Why Blood Testing is now the implied consent test that I recommend is discussed in my article ” Blood Test or Breathalyzer? Which test should I take?”

If you have questions about blood tests, their problems, which test to take or DUI in general:

We’re here to fight for you. Free Consultation. Call me at (213) 479-5322.

If you have an opinion, please leave a comment.

 

 

Chemical Model of fermentation in DUI Blood Tests

Chemical Model of Fermentation in a DUI Blood Test

How the CA DUI Blood Test Works.

As part of the California Implied Consent Law, a person arrested for DUI is given the option of taking a breath or a blood test. For reasons I discuss elsewhere, blood testing is now my recommended choice.

Remember: unless you are under 21 or on DUI probation you are free to refuse the handheld Breathalyzer given at the scene of the DUI stop AND I advise that you so refuse.

When you opt to take a dui blood test, the cop takes you to a hospital, or in some cases they take you to a phlebotomist (vampire) that they have on staff at the police station. The blood drawer is supposed to draw the blood by using accepted medical practices.

The cop then takes the blood vial and puts it in an envelope.  He puts the envelope in the unrefrigerated evidence room.  At some point, the blood sample is moved to the crime lab.  The blood is tested at the lab.  It usually takes 3-4 weeks before the lab technician gets around to testing the blood.  This creates a problem in that the blood becomes contaminated and the sample is ruined by fermentation.  I discuss fermentation here: Fermentation: The Big Problem with the DUI Blood Test in CA.

When it is finally time for the actual blood testing, the lab technician takes the vial and uses a syringe to draw off two 1 millimeter samples.  The samples are then put in an oven and heated.  The gas above the blood in these samples is called the headspace.  Once heated, the lab tech takes a syringe and draws off a very small sample of the headspace gas.  This gas is then transferred to the gas chromatagraph.

To this gas a constant amount of Isopropanol is added.  The Isopropanol is used as a baseline reading. A carrier gas, usually hydrogen, is used in the tube.

The science behind blood testing relies on headspace gas chromatography flame ionization detection.  Gas chromatography is a process by which the various volatile organic compounds present in the gas sample are separated and measured. The gas is injected into a tube.  The different volatile organic compounds take different amounts of time to go through the tube.  For instance, in the sample chromatogram linked to below, ethyl alcohol (ETOH) comes through at 0.85 minutes.

Diagram of a Chromatogram Reading (Notice in the diagram linked to there are two peaks to the left of the alcohol peak. These are other volatile organic compounds in the sample that inidicate that (1) this sample is contaminated and (2) the blood has fermented after it was drawn. The peak farther to the left, at about 0.64, is the injection peak which shows when the sample was injected into the tube.)

There are two samples,and in the better method of blood testing, two different tubes are used so that it takes each of the volatile organic compounds a different amount of time to go through each tube (the amount of time it takes to go through the tube is called elution).  When only one tube is used, you can’t tell whether the different volatile organic compounds are interfering with the measurement of alcohol no matter how many times you run the sample through (when two different substances come through the tube in the same time, this is called co-elution).

At the end of the tube, there is a flame.  When the alcohol (ETOH) comes through the tube it is burned off and the increased ionization is measured.  The hydrogen carrier gas has a base ionization rate.  When the various organic compounds come through, the increased ionization is measured.  The measurement creates a spike.  As I discuss elsewhere, a good spike is symmetrical. A bad spike is not symmetrical or has a long foot at one side. The one linked to above has an asymmetrical foot on the right side. The spike doesn’t resolve to the base line until almost 1.0 minute.

The area under the spike is measured using calculus.  The numerical value is the amount of alcohol in the blood which is then translated into grams/210 milliliters. A more sciency explanation can be found here.

This is how blood is tested.  There are big problems with blood testing that you can use to fight your DUI case, which I discuss in my article Fermentation: The Big Problem With Blood Tests.

If you have questions about blood tests, it’s problems, which test to take or DUI in general call me at (213) 479-5322 or fill out the easy form at the right. I’ll be happy to give you a Free Consultation or answer ny questions you have. And if you have an opinion, please leave a comment.

Always Report Police Misconduct Police Car with Police in the background

You can sue about lying, if you win the Criminal Case.  If you lose your Criminal Case, you can’t sue. But I highly recommend that, win or lose, you utilize the Sheriff (or any law enforcement agency’s) complaint procedure to report police misconduct.  It may not help you, but it could help a Defendant in the future about whom they lie and help attack the officer’s credibility at trial.

Every law enforcement agency has a procedure for complaining about an officer’s behavior.  Any thing you can complain about a co-worker about, you can complain against a cop: lying, cheating, stealing, physical abuse, sexual harassment, making derogatory comments, racism, etc.

Recently, a friend had a case where one cop complained about his partner.  The Lawyer was able to use the complaint to negotiate a better deal for his client because the Prosecutor didn’t want the information about the cop to come out at trial.

During a Criminal Trial,  there is a process called a Pitchess Motion wherein in defendants, about whom a cop has lied, can request that the police agency turn over all other complaints that people have made about the officer lying (or falsifying reports, or excessive force, or planting evidence).  The Motion states that what the officers have  put into their reports is false and it may suggest an alternative scenario.  The Court then rules on whether there is a discrepancy.  If there is, then Court then has an in camera (private) review of the officer’s complaint file.  If there are any complaints, they are turned over to the Defense Counsel who can then investigate the complaints and call the complainants as witnesses who will testify against the officer.

In the age of digital cameras in phones, everyone has the power  and it’s legal in in CA to record the cops. But you have to know how to do it. I diiscuss this in my article Ten Rule  of Filming the Cops.

The First Circuit Court of Appeals (Mass.) decided a case recently entitled Glik v. Cunniffe. Briefly, Glik heard someone yell and moved toward the yelling.  Seeing a couple cops beating some guy up, he started to film/record the transgression.  The cops arrested Glik for wiretapping, disturbing the peace, and aiding a prisoner’s escape.

The case against Glik was dismissed.  Glik filed a 42 USC 1983 lawsuit against the cops who arrested him.  The cops tried to defend themselves from liability by saying they were entitled to qualified immunity.  The Court of Appeal said, no.

First, Glik’s First Amendment right to record the police is clearly established.

The Court of Appeal said that the filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.” Mills v. Alabama, 384 U.S. 214, 218 (1966).

Moreover, as the Court noted, “[f]reedom of expression has particular significance with respect to government because ‘[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.'” First Nat’l Bank, 435 U.S. at 777 n.11 (alteration in original) (quoting Thomas Emerson, Toward a General Theory of the First Amendment 9 (1966)).

The Court then held that Glik’s fourth amendment right to freedom from unreasonable seizure was violated as the police completely lacked probable cause to arrest him.

I tell all of my client’s how important it is to document police misconduct.  Not just by recording it if you see it, but by reporting it when it happens to you.  The Pitchess process whereby prior complaints against specific police officers are obtained and then used to impeach the credibility of the police officer is essential to mounting a good defense.  The effectiveness of the Pitchess process relies on individuals reporting abuse.

But won’t the prosecutor’s punish me more harshly if I complain?

Recently I filed to separate motions (Pitchess and PC 1538.5) in separate cases.  After I did the respective prosecutors told me they would up the offer because I filed the motions.  I told them they couldn’t do that.  One of them laughed at me, the other became petulant.

Well, they can’t do that.

See they upped the offer in retribution for filing the motions.  Nothing changed about the case, other than me pressing my client’s legal rights.

“[T]he appearance of vindictiveness results only where, as a practical matter, there is a realistic or reasonable likelihood of prosecutorial conduct that would not have occurred but for hostility or a punitive animus towards the defendant because he has exercised his specific legal rights.”) (citing Goodwin, 457 U.S. at 373, 384). The mere appearance of prosecutorial vindictiveness suffices to place the burden on the government because the doctrine of vindictive prosecution “seeks[s] to reduce or eliminate apprehension on the part of an accused” that she may be punished for exercising her rights. Ruesga-Martinez, 534 F.2d at 1369. As the district court noted, the “prophylactic” doctrine is designed, in part, “to prevent chilling the exercise of [*10] [legal] rights by other defendants who must make their choices under similar circumstances in the future.” United States v. DeMarco.

Cop examining woman's license at traffic stop

You can fight if a Cop lied on your arrest report, in your case or in court!
There is a process called a Pitchess Motion wherein in a Defendant about whom the police lied, in an arrest report, criminal report or in testimony, can request that the police agency turn over all other complaints that people have made about the officer lying (or falsifying reports, or excessive force, or planting evidence).
A Pitchess Motion states that what the officer(s) have put into their reports is false and it may suggest an alternative scenario. The Court then rules on whether there is a discrepancy. If there is, the Court then has an in camera (private) review of the officer’s complaint file. If there are any complaints that show lying or falsifying police reports they are turned over to the defense counsel who can then investigate the complaints and call the complainants as witnesses who will testify against the officer.
The other tool to obtain impeachment evidence as well as exculpatory evidence is a request for Brady Evidence. It all comes out of a fairly old case, that remarkably remains mostly intact, called Brady v. Maryland. Police personnel files that contain Brady information can only be accessed by Pitchess motion.
Brady establishes that the Prosecution has a non-delegable duty to discover and disclose exculpatory and impeachment evidence. The Prosecution has to turn over all evidence favorable to an accused, that is material to either guilt or punishment. Material evidence is that evidence that shows a reasonable probability that, if disclosed to the Defense, it would have resulted in a different decision by the Trial Court. US v. Bagley. The Prosecution’s duty is ongoing pre-trial, during trial and even after trial. US v. Agurs.
Impeachment evidence includes the following:
— Evidence showing inept or biased police investigation, including concealing evidence about prosecution witnesses. Kyle v. Whitley.
— Charges pending against prosecution witnesses. People v. Santos.
— Evidence showing witnesses have a readiness to lie based on evidence of their ‘morally lax character’, even if it isn’t charged as a crime. People v. Mickle.
— Evidence that ‘victim’ made false accusations. People v. Tidwell.
— The identity of all percipient witnesses, even those the prosecution does not intend to call at trial. US v Cadet.
— Evidence that some other dude did it. Kennedy v. Sup. Ct.
— Evidence related to defenses and punishment mitigation. Brady v. Maryland.
— Evidence of all inducements for State’s witnesses to testify. Giglio v. US.
Additionally, the Prosecutor cannot avoid their responsibility by claiming they didn’t know about the information.
There is no good faith excuse. The prosecutor has a duty to investigate whether Brady evidence exists. Kyles v. Whitley.
The prosecutor cannot avoid his duty because the defendant didn’t make a specific request. US v. Agurs.
If you have had these sort of these problems with a cop, or you have any question at all, please call me at 213-479-5322 or fill out the easy form at right.

DUI DMV Hearing InteriorBrenner and the DMV DUI Hearing

Find out procedural information about the DMV DUI Hearing Here

I often refer to the DMV DUI hearing (Department of Morons and Villains h/t Ed Kuwatch) as a “Kangaroo Court” because the DMV Hearings Officer, often a person with no legal training, acts as the prosecutor, judge and jury.

The defense bar recently got a little help keeping client’s licenses from, of all places, the First District Court of Appeals. In Brenner v. DMV the Court held that once the DMV puts on their prima facie case by admitting, over Defense objection, the police report, if the Defense is able to show evidence questioning the accuracy of the equipment used to test the driver’s blood alcohol content, then the DMV must rebut this by showing by a preponderance of the evidence that the machine was operating correctly.  In Brenner the DMV failed to do so.  Brenner v. DMV (A126745, First Dist., 10/18/10) ___ Cal.App.4th ___.

In Brenner, the DMV put on their usual show with the police report and DS 367.  The report showed the Brenner blew a .08.  The respondent’s counsel introduced the maintenance and accuracy logs through an expert. The accuracy log showed that the machine was running about .01 high.  That is, the machine was tested with 1.0 solution and the result displayed by the machine showed 1.01.  Brenner’s attorney argued that Brenner’s BAC had to be below .08.  The DMV thanked him and said they’d take it under consideration.  They came back and suspended Brenner’s license.  Brenner’s attorney submitted a writ, the Superior Court agreed with Brenner. 

The DMV appealed and the Court of Appeals also agreed with Brenner.

I think its good news every time the DMV is told that the law matters in these things and have incorporated Brenner in the arsenal I bring to the DMV.

Attacking an Out of State Prior DUI in CA.

An Out of State Prior DUI counts in California, if the other state’s DUI law is substantially similar to California’s DUI law.

Generally speaking this means that the other state law has a driving component, as opposed to a operating component, and that the level of intoxication for the (a) count is “mental or physical abilities are SO IMPAIRED” as to be not within the range of ordinary.

When the client is charged with an Out of State Prior, the remedy is to either file a Demurrer at the Arraignment, file a Motion to Strike the Prior during the Pendency of the case or attack the Pior in a bifurcated Trial.

If you have an out of state prior that is impacting your current California DUI case, contact my office to discuss your case more fully.

Here are the Dui, OUI and DWI Levels for all the States:

State     OUI/DUI                                  Level of Impairment

AL        Drive/Physical Control               alcohol: under the influence/drugs: ‘so impaired

                                                              can’t operate safely’

AK

AZ        Drive/Physical Control               slightest degree

CO       Drive                                         impaired to slightest degree

CT        Drive                                         affected to appreciable degree

DE        Drive                                         under the influence

FL        Drive/Physical Control                impaired

GA       Drive/Physical Control                less safe for person to drive

HI        Operate/Physical Control            impair

IA        Operate                                      intoxicated

ID        Drive/Physical Control                under the influence

IL         Drive/Physical Control                incapable of safely driving

IN        Operate                                      intoxicated

KS       Operate/Attempt                        incapable of driving safely

KY       Operate                                     impaired

LA       Operate                                      under the influence

MA      Operate                                      under the influence

MI        Operate                                     under the influence

MN      Drive/Physical Control                under the influence

MO      Operate                                     intoxicated/drugged condition

MS       Operate                                     impaired

MT       Physical Control                         under the influence

NE       Physical Control                         under the influence

NH      Drive/Attempt                             under the influence

NJ       Operate/Allow Another               under the influence

            to Operate

NM     Drive                                          under the influence

NY      Operate                                      intoxicated condition

OH      Operate (Car, Streetcar              under the influence

            Trackless Trolley)

OK      Physical Control                         under the influence

OR      Physical Control                          under the influence

PA       Drive, Operate, Physical              incapable of safely driving

            Control of Movement

RI        Operate                                     under the influence

SC       Operate                                    materially/appreciably impaired

SD       Physical Control                       under the influence

TN       Physical Control                       impairs ability to safely operate

TX       Operate                                   intoxicated

UT       Physical Control                       impairs ability to safely operate

VA      Operate                                   under the influence

VT       Physical Control                      under the influence

WA      Drive                                      under the influence

WI        Operate                                 incapable of safely driving

WV       Operate                                 under the influence

WY       Physical Control                    incapable of driving safely

How long is a DMV Drivers License Suspension?

It depends.  For a first time DUI, the DMV will suspend your license for 4 months.  You can get a restricted license to drive to and from work after 1 month.

The DMV will also suspend your license for 6 months after a DUI conviction.  You can get a restricted license immediately.

If you live in Los Angeles, Sacramento, Alameda and Tulare counties, you will be required to install an ignition interlock device (IID) to qualify for a restricted license, but you can drive anywhere with an IID.

If this is your second time, your license will be suspended for 2 years.  You will be able to get a restricted license after 1 year, unless you live in one of the above counties in which case you will be eligible for a restricted license after 90 days with an ignition interlock device.

If it is your 3rd time DUI, your license will be revoked for 3 years.  You will be eligible for a restricted license 6 months with an ignition interlock device.  A 4th time DUI (felony) will result in a 4 year revocation.  You will be eligible for a restricted license after 1 year, with ignition interlock device.

If you are under 21 the DMV Suspension will be for 1 year.  You can’t get a restricted license, but you can apply with the DMV or ask the court for a hardship license.

If you refuse to take the implied consent chemical test, the one given after you are arrested, your license will be suspended for 1 year with no restricted license or hardship.

To avoid DMV suspension, you must (1) schedule a DMV Admin Per Se Hearing within 10 days of your arrest and (2) prepare a sufficient defense to avoid the DMV suspension.

Beers clinkingTelling Cop You Had One Or Two Beers Is Usually the Wrong Answer.

Those pulled over for a traffic stop invariably tell the arresting officer that they had “one or two beers” when asked.  This is a mistake for two reasons.  First, the person pulled over is under no obligation to assist the police officer in building a case against them.*  It is axiomatic that unless you are a lost six year old, the police officer is not there to help you.

Second, if it’s not true that the person had one or two beers, then it will come back to discredit them and will limit their options at the DMV and trial.  If the person blows around .08, then they had approximately 4 drinks. Widmark’s formula** tells us that every drink raises the BAC of the average man by approximately .02.  Thus, a .08 BAC means that the person imbibed 4 drinks.  So when you tell the officer that you only had one or two beers and you blow .08 and later the alcohol tech testifies that you must have had 4 drinks based on Widmark’s formula, your credibility is shot.

Again, I cannot stress enough how important it is NOT to answer the cop’s questions when pulled over for a traffic infraction/DUI investigation.  {I wouldn’t even answer, “Do you know why I pulled you over?”} Contrary to popular belief, your statements to the officer are not made inadmissible because he didn’t read you your Miranda rights.  The US Supreme Court in Berkemer v. McCarty has said that answers to post-stop/pre-arrest questions (the US Supreme Court actually said 1-2 questions; in California the DMV and Courts stretch that to include the 23-30 DUI investigative questions asked by officers) are not constitutionally protected by Miranda. Your statements will be used to contradict any testimony you later give.

The second answer that is almost universally given in one form or another is to the question “When did you start/stop drinking?. The detainee’s instinct is to make the drinking as long as possible from the stop and answers accordingly.  This may impact a defendant’s credibility later, after the way alcohol behaves in the body is explained to him, and it is too late to tell the truth.  In most situations, the closer to the stop the person was driving the better for them.

This is for two reasons: First, breath alcohol in the absorptive phase is higher than actual Blood Alcohol.  So, when given a breathalyzer test in the absorptive phase, what the machine reads will be higher than what is actually in your system. Commonly used breath  testing machinery manuals state that it is improper to use the machine for 120 minutes after the person stops drinking because of this.

Second, because alcohol is absorbed over time and it can take between 50 minutes and 2 hours (or longer after you eat) to fully absorb alcohol, the person’s BAC at the time of driving may be less than .08.  An answer by defendant that pushes the time drinking stopped further back will be used to evidence that the Defendant is in the elimination phase and his BAC was higher at the time of driving. See Graph.

* Again, if you have NOT been drinking, cooperate with the police.  If you have been drinking, even a little bit, it is highly likely that regardless of whether you cooperate you will be going to the station, so why give the police evidence that will later be used against you if you are charged?

** Widmark’s formula was developed in the laboratory under strict controls. It is probably not scientific when discussed by a alcohol tech where the only variable that is objectively added into the formula is BAC at some random point after the stop.  Further, Widmark’s formula requires imputting a constant based on the ‘average man’ or ‘average woman’.  Anyone average out there?

The Prosecutor Must Prove Driving In Your DUI Case.

In California, the “D” in Driving Under the Influence  stands for driving.  Some states, allow conviction for DUI if you are operating or in control of the vehicle.  In California, a DUI requires some ‘volitional movement of the vehicle’.

Do the cops need to see you driving for the arrest to be valid?  Yes. Except for limited circumstances outlined in Vehicle Code Section 40300.5, like if you are in an accident or blocking the road, they need to observe you drive to arrest you for Misdemeanor DUI (Penal Code Section 836 requires presence of cops during the Misdemeanor for arrest).  If they did not see you drive, you might be able to suppress the Arrest and subsequent tests.

Even in the freedom – destroying cases of US v. Navarette and People v. Welch, where snitches supposedly observed poor driving in the people who were subsequently arrested, the cops themselves observed the Defendants drive.  The US Supreme Court in Navarette said an arrest based on no observed bad driving was constitutional because an unidentified informant supposedly observed bad driving and told the dispatcher about it. The same thing happened in Welch, but by the California Supreme Court.

Also, for the breath or blood tests to mean anything, the cops need to be able to determine when you were driving. They need to do this because the State ‘criminalist’ will use the voodoo science of ‘retrograde extrapolation’ (retro = back, grade = look, extrapolate = guess) to determine your BAC at the time you drove which is what the law requires.

They can’t do this if they don’t see you actually driving.

FYI: It doesn’t matter if you are seen driving a car on private or public property People v Malvitz.

If the cops didn’t see you driving, your case is defensible because if the Prosecution takes the case to Trial, they have to prove when you drove in order to establish BAC at time of driving. So without a witness to the driving, they can’t prove that. This usually plays out where the cops come upon a one car accident or find someone asleep behind the wheel.  As far as they know,the accident could have happened or the person pulled over, hours ago.

Remember, the D in DUI stands for driving. There is an issue of PC 836 presence requirement for a awful Arrest on a Misdemeanor. This should be addressed by a Motion to Suppress. At Trial, the Prosecutor will introduce circumstantial evidence of driving. There is also the issue of Time of Driving. This is an issue with respect to time of driving for the 3 hour presumption and the retrograde analysis that will be used to place your driving at .08 or above. If the prosecutor can’t prove when you were driving then they can’t prove your BAC at time of driving by either method.

If you have any questions about DUI, driving, time of driving or any other DUI related issues, please give me a call at (213) 479-5322, or fill out the easy form at right.


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