Wednesday, September 18, 2013

It's Possible to Win a DUI Case Over a .08. Here's How.

Recently (the last week of August, 2013), I tried a DUI case before a Jury in Hardin County.  My client was driving home from a restaurant, and after some Field Sobriety Tests (the police officer said she didn’t do very well), my client ended up blowing a .105 on the Intoxilyzer.  After an all day trial, the Jury found her Not Guilty of DUI.

It is possible to have your breath alcohol level measured by an Intoxilyzer, have a reading over a .08, and still be Not Guilty of Driving Under the Influence.  That’s a pretty strange thing to say.  And I realize some of you are giving me the “don’t try to lawyer me” face. 

I’d just like to remind you that your face WILL freeze like that one day if you don’t stop it.

Billboards, TV and Movies have brainwashed us into thinking things about the law that simply aren’t true.  If I had a nickel for every time someone told me their case should be thrown out because the police didn’t “read me my rights” I would have several nickels and a headache from yelling at Friday from Dragnet.

Friday came under the guise of wanting nothing but the facts, but ran through the U.S. like a tornado of misinformation.  The police don’t have to read you Miranda Rights unless you are in custody and they are going to interrogate you.

For another example: Raise your hand if you know it’s illegal to drink and drive in Kentucky.  Go ahead, put em up where I can see em.  All of you?*

Well, I’m sorry.  You’re all wrong.  That’s not the law in Kentucky.  “Don’t Drink and Drive” is a billboard slogan.  It is not the Law.  In this great Bluegrass State, it is very much legal to have a drink and drive if you are not “under the influence.”  That’s why the law is called Driving Under the Influence.  Not “drinking and driving.”  You can have a couple Maker's and Ale 8's out with friends -  if you aren’t over the .08 limit, and you’re not under the influence of alcohol, and drive home legally.

But what if the police get you to blow on a breathalyzer, and your BAC is over the “legal limit” of .08?  Well, then – you need a good DUI lawyer.  But you may not be Guilty of DUI.  It doesn’t look good.  But you may still have a good argument.

Let me explain why.  The argument is called “relation back” in the DUI defense circles.

In Kentucky, by law, a good deal of time has to pass between the time you’re driving a car and the moment you blow on an Intoxilyzer.  During that time, you’re probably going to be talking with a police officer (although, generally, I’d advise you not to), performing Field Sobriety Tests (although I would definitely advise you not to), taking a ride to the police station, and undergoing a 20 minute watch period before the Intoxilyzer exam.

Reasonably, at least 30 minutes are going to pass from the time you’re behind the wheel to the time you give a breath sample. 

There’s the key.

The Intoxilyzer measures your breath AFTER you’ve been driving.  That doesn’t mean you’re at that level of intoxication WHILE driving.

Let me give you an example.  Let’s say I’m with my buddies at BW3s, and we’re having wings and beers.  I drink like 4 of those big cold ones within a 20 minute period.  Let’s assume that 4 22oz beers will get me to .08, the legal limit.  But that doesn’t happen immediately.

Alcohol levels rise and fall.  After drinking, the BAC starts to go up, and once you reach your peak, the level starts to go down.  If you were to put it on a graph, it kinda looks like a bell curve.

Here’s a hypothetical scenario:  Let’s say I drink those beers at BW3s, and I drive home (I live about 5 minutes from B-dubs).  After I get home, I sit down in my favorite chair, and start watching a movie.  I’m ½ way through Ghost Dad before my BAC climbs to a .08 – I become under the influence, and then my BAC starts to fall.

Under those facts, I did NOT commit the crime of Driving Under the Influence of Alcohol.  Because at the time I was driving, I was not under the influence.  My BAC was only climbing.

That’s “relation back.”

And that’s why it’s possible to win a .105 DUI.

Keep in mind - I don't have to PROVE my client was sober.  It is the prosecution's job to prove she is under the influence.  And that burden is beyond any reasonable doubt.  In Kentucky, that 30 minute time span between a driver behind the wheel and an Intoxilyzer can be just the reasonable doubt we need.

For the record, I’m not telling you that drinking and driving is a good idea.  Generally, it’s a pretty bad idea.  When you’ve had a drink or two, call a cab.  It’s safer and you won’t have to deal with these expensive and stressful legal issues.

If you’d like more information on Kentucky DUI, call me – Louisville DUI attorney Greg Simms, at 502.473.6464

My door is always open.

*Sorry - I didn't see you in the back.  I didn't mean ALL of you.

Questions answered in this blog post:  Do I need a lawyer for a DUI 1st; How can you win a DUI over a .08 in Kentucky; who has the burden of proof in a DUI case; how can I find a good Elizabethtown DUI lawyer; is it illegal to have a drink and drive in Kentucky; what is the legal limit in Kentucky;  who was named in Louisville Magazine's Top Lawyers for the past 2 years in a row for DUI - Greg Simms was, that's who.

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