In my last article in the Anatomy of a DUI series, I discussed the effects of alcohol from a clinical perspective showing the various stages of intoxication at various Blood Alcohol Concentration (BAC) levels.
Why is this important information to know? When a person is arrested for driving while under the influence of alcohol, the arresting officer will note the persons symptoms and behaviors in the arrest report, thus knowing what an arresting officer is looking for is important to possibly avoid a DUI arrest and conviction.
For example, a person who has a BAC level of 0.09 to 0.25 would very likely appear to be intoxicated as they would likely exhibit symptoms of mental impairment - impaired perception, memory, comprehension, and physical impairment – impaired motor skills, coordination, and balance.
When defending a person accused of driving while under the influence of alcohol, the symptoms of the affects of alcohol are very important. I have defended cases where the BAC result was, let’s say a 0.20% BAC, and yet the person did not appear to be intoxicated. The arresting officer’ arrest report did not note symptoms or behaviors that would be consistent with a person who has a 0.20 BAC, thus there was a “disconnect” when comparing the person’s behaviors to the 0.20% BAC. For example, the arrest report had no indications of signs of mental and physical impairment. Signs of mental impairment: the person fumbled to get his driver license out of his wallet, or had a hard time finding his registration, or asked the police officer to repeat a question, or did not know where he was, etc. Signs of physical impairment: a person lost his balance while exiting the vehicle, swayed while standing, slurred speech, could not perform field sobriety tests, etc. Because the arrest report did not indicate symptoms of mental and physical impairment consistent with a person that has 0.20% BAC, there must be something wrong with the 0.20% BAC result.
Recently, I was talking with a person (who shall remain nameless) that had been arrested for DUI and was represented by the public defender. This person told me that the public defender advised him that his BAC result was 0.40% and that the public defender advised him to plead guilty, so he did. This person also told me that at the time of his arrest, he thought he did well when performing the field sobriety tests that were given by the arresting officer. I was amazed when I heard this story, because it would be impossible for a person with a 0.40% BAC to perform ANY field sobriety tests. A person with a 0.40% BAC would likely be in coma and near death, so there had to be something wrong with the BAC result. This was likely an injustice.
Because police officers are looking for “symptoms and behaviors” indicating impairment, I advise persons to always take a blood test and NEVER take any breath tests (unless the person is under 21 years of age or on probation for a prior DUI conviction).
When a person takes a blood test to determine their BAC level, the arresting officer will not know the results of the test for a week if not more, and the report will have been written without the arresting officer having the knowledge of the BAC result in mind. Thus the arrest report will likely be more “objective” and honest. If an arresting officer knows the BAC result because the driver agreed to take a breath test, the arresting officer will write his report having the BAC breath result in mind. So now the officer will list symptoms and behaviors that correspond to the known BAC result. You might be thinking “would a police officer write things in an arrest report that didn’t happen?” My response is “umm, what do you think?”