When is 0.08% really not 0.08%? – Orange County DUI Lawyer/Attorney

As I discussed in another post, just driving a car with a blood alcohol level at or above 0.08% is a crime.  But when is that 0.08% magical number really not what we think it is?  There are defenses to driving with a blood alcohol above the limit.  One common misconception is that the blood alcohol level shown in the chemical test (either blood or breath) is the true measure of your alcohol level.  If it’s accurate, it measures one thing – your alcohol level at the time of the test. The problem is, that doesn’t show what is crucial – your blood alcohol level at the time of driving. The prosecution must rely on mathematic formulas and certain assumptions to try to prove what your alcohol level was at the time you were driving.

Your alcohol level drops as your body metabolizes, or “burns off” alcohol in your system.  This is the natural process of “sobering up.”  But just like fingerprints, every person is a little different when it comes to alcohol “burn off” rate.  The prosecution uses certain “standard” rates to try to calculate backwards from the test to the time of driving.  There are potential flaws in that reasoning, however.  What if you had a full stomach?  What if you are a thin person?  What about your gender?  What if you are taking medication?  What about medical conditions?  All those factors (and more) may affect your true blood alcohol level.  Before looking only at the blood alcohol level the prosecution or police say you have, you should have your case evaluated by an attorney to explore any possible defenses in your case.

1 Comment

  1. Paul B. Kennedy - September 17, 2008 at 5:58 pm

    Of course convincing a jury that there’s a difference can be difficult when they are trained to believe that the breath test machine is accurate and infallible.

10 Trackbacks

  1. […] have previously talked about how the blood alcohol level measured by the government may not be accurate. Because the blood alcohol level relied upon by the prosecution only measures your alcohol level at […]

  2. […] to prove a case of DUI against you, they have to be able to prove you were driving. I’ve talked before about problems with the blood alcohol results and the defenses you may have against a DUI charge. […]

  3. […] or drugs at any level. The second charge is 23152(b) – driving with a blood alcohol at or above 0.08%. Even with “perfect” driving, just having that blood alcohol level and driving a car is […]

  4. […] field sobriety tests are voluntary.  You don’t have to submit to anything except an official chemical test to determine your blood alcohol level if you are arrested for DUI.  You can decline to answer […]

  5. […] When is 0.08% not really 0.08%? […]

  6. […] arrested for a DUI and the results come back at or above the “legal limit” of 0.08%, there are still issues to look into with your attorney.  Sometimes, the blood alcohol result, even if accurate, […]

  7. […] field sobriety tests are voluntary.  You don’t have to submit to anything except an official chemical test to determine your blood alcohol level if you are arrested for DUI.  You can decline to answer […]

  8. “One for the road?” - January 18, 2011 at 10:11 pm

    […] have previously talked about how the blood alcohol level measured by the government may not be accurate. Because the blood alcohol level relied upon by the prosecution only measures your alcohol level at […]

  9. […] field sobriety tests are voluntary. You don’t have to submit to anything except an official chemical test to determine your blood alcohol level if you are arrested for DUI. You can decline to answer […]

  10. […] today to request a hearing with the DMV or they’ll automatically suspend your license.  At a 0.09% alcohol level [according to news websites], you may have defenses to these charges.  Time for an […]

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