The Presumption of Impairment (DUI)

A typical DUI/DWI stop will involve the police pulling someone over, smelling alcohol or the person admitting that they have been drinking and the impairment tests done on the side of the road. Walking and Turning, Counting, Touching the Nose, Gaze and Nystagmus, and Balancing are just some of the tests the police like to use to determine if a driver is impaired. Then you get to blow into a little machine.

What many people don’t realize is that little machine you blow into, the preliminary breath test, is not the primary proof of evidence that is used against you in Court. In fact, the main evidence is the Breathalyzer or Blood Draw that is taken after you’ve been placed in custody. Sometimes more than an hour can elapse from the time a person is stopped to the time the official Breath or Blood Test is done.

So what happens if you blow a .07?

If your official test is below the limit, then you should be found not guilty, right?

Not necessarily! In cases where the official BAC is low, the prosecutors and police will bring in experts to establish that at the time the person was driving, their actual BAC was much higher. Since alcohol breaks down in the body at somewhere between .015 and .02 per hour, the longer the time since the last drink, the less alcohol will appear in the system. Experts can be used to show that at the time a person was driving, there was actually more alcohol in their blood than the at the time the official Breath or Blood Test was taken.

So keep that in mind when you venture out for an evening. If you think you may have had too much, it is better to wait a little longer than take a chance on the road, because if you get stopped, a BAC that is close to the limit or even below, may not be enough to prove you are innocent.

 

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