Interviewer: Is this is the preliminary test you do roadside, not at the police station?
Steve: Yes, it is.
Now, guess what the outcome was in that case? The hearing officer came back with a decision. He said, “Because of sufficient probable cause, he was lawfully placed under arrest.” The hearing officer never even addressed the argument. That is what happened there.
I prepared a letter to her supervisor, and it is still under review right now. To me, it is unfair that the director of the DMV appoints a hearing officer to decide the issues; but then essentially ignores the issues, the arguments and the evidence. Interestingly, the jury is still out on that one.
Finally, for the person who allegedly blew a 0.09 on the chemical test, it opened up a whole area of litigation with respect to the third issue. This third issue, again, is: Was the person driving at the time his or her blood alcohol concentration was 0.08 or greater?
The issue is not the time of the test. It is: Did the person have a blood alcohol concentration of 0.08 or more at the time of driving? Let’s just say the person was arrested at one in the morning. Then, at 2:15 in the morning, he goes down to the station and blows a 0.09.
Well, depending on when that person’s last drink was, and pertaining to issues with absorption of the alcohol, that person’s blood alcohol concentration might have been rising.
So you have a rising blood alcohol defense. The alcohol had not been fully absorbed. It was still in the stomach. It was still processing and absorbing the alcohol, from the time he was stopped until the time he tested out.
I like to do have the paperwork, the reports and the chemical test reviewed by a forensic toxicologist to determine if there is a rising defense. They look at the results of the preliminary alcohol screening test. They look at the results of the evidentiary chemical test.
They will look at various other factors, and there could be a rising defense. That is one way to handle the third issue in favor of the driver.
Interviewer: How often can you tell if someone’s blood alcohol is rising or falling?
Steve: Perhaps they tested out at a 0.08 on a preliminary alcohol screening test, and when they got to the station they had a 0.11. It is obviously rising. So the issue is: At the time of driving, was it 0.09, 0.08? Was it 0.07?
Typically, preliminary alcohol screening tests are not a reliable indicator. It is just as likely they were 0.07 or 0.08, depending on the margin of error and other factors. It becomes very complicated.
With the 0.08 issue, we prepare for the hearing. We subpoena issues with respect to the stop, the video and audio. We also subpoena for the computer activated dispatch records and logs to see the broadcast report and reasons for the stop.
On the third issue, we also request maintenance and calibration logs for the devices used. We determine if they were compliant with regulations; or not. If they were out of compliance, there are ways to use that to the client’s advantage.
Perhaps the machine was not working. One would think if you are going to be charged with DUI criminally, or your license is going to be taken away, it would probably be best if the machines were operating correctly.
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