We see forensic evidence being used in criminal cases such as murder, but what about DUI cases? Torrance Attorney Matthew Ruff did just that in a recent case involving a client who worked for a major utility company, had a a commercial license that was in jeopardy of being lost if he lost the case. Here is a summary of the facts:

The client was stopped on the 605 freeway by CHP for speeding and weaving. He was asked if he had been drinking and admitted to consuming wine earlier in the evening. He was given various FST exams and, according to the officer, failed those tests. A breath test was administered in the field which displayed a .11 and .12, he was promptly arrested.

While at the station the client submitted to another chemical test which was consistent with the first BAC tests out in the field. He was booked, his license was confiscated and he spent the night in jail. Upon release he was issued a Court date and a DMV document that explained he was facing a mandatory 4 month suspension of his non-commercial driving privilege and a 1 year suspension of his commercial license which he needed for his job.

The client called around looking for a lawyer that could help. He then spoke to a co-worker who had a similar dilemma years earlier and was represented by Matthew who agreed to take his case.

During the investigation of the facts if the case, Matthew concluded that the client was a classic “rising blood alcohol” as it related to his true BAC at the time of driving. Here’s why: The client drank wine earlier in the evening, his last drink was within an hour of his stop and arrest. He drank nothing prior to that in the day. His alcohol consumption fit a pattern that put him in the absorptive phase of impairment. This meant that although his breath results were high at the time of his arrest and later at the station, at the time of driving he was much lower.

You see, under California law all that is important in DUI cases is what the driver’s blood alcohol level was when he was behind the wheel moving. Although there is a presumption that the motorist was the same BAC while driving as he was at the time of the test, that presumption is rebuttable, meaning that if the lawyer presents affirmative evidence that the accused was rising, that is admissible to bring him below a .08. In this case, the evidence was brought in via a forensic toxicologist who opined that the client was actually a .06 when he was stopped and lated climbed to the levels depicted by the breath machine. A scientific calculation known as “retrograde extrapolation“.

As a result of this forensic testimony, the DMV set aside the license suspension and took no action against the client’s commercial driving privilege.

What do the scientists say about blood alcohol absorption:

“The absorption of alcohol is a complex dynamic process that begins as soon as drinking begins. Alcohol is primarily absorbed into the bloodstream through the small intestine, but some absorption occurs in the stomach and mouth.

Absorption rates are highly variable and are not linear. Factors such as the presence of food in the stomach, the type and volume of beverage consumed, other drugs consumed, and the condition of the gastrointestinal tract, can impact absorption rates. Studies support that it can take up to 2 hours to reach the post absorptive phase after the last drink The time needed to reach the peak alcohol concentration is not the same as the time to reach the post absorptive phase

Torrance DUI Attorney, Matthew Ruff has over 30 years experience defending drivers accused of all alcohol related offenses. This case represents one of many legal defenses that can be utilized in a criminal or administrative proceeding.

If you or someone you know was arrested and charged with driving under the influence and the last drink or drinks were consumed within 2 hours of the chemical test, you may be a candidate for a rising blood alcohol defense. Contact Matthew for a consultation today.