Do I have a possible defense based on the theory that the alcohol hadn't had time to enter my blood system? 15 Answers as of April 19, 2013I stopped at an establishment, had 2 drinks and ate. I was there for approximately 15 minutes. I left immediately after quickly drinking my 2nd drink. I was pulled over 2 minutes after I left.
Law Offices of Laurie A. Schmidt, P.C. | Laurie Schmidt
Your question cannot accurately be answered without a detail review of ALL facts and the entire police file from the incident. If you have a defense to the charges (which you may); the only way to assert that defense is to take the case to trial. Simply telling the prosecutor or DA that you have a defense and then explaining your defense does nothing more then tip your hand. The DA or prosecutor would not dismiss the charges based on the assertion of the defense. Even with that, you still must fight the DMV action which is separate from the court action.
Answer Applies to: Colorado
Gregory Casale Attorney at Law | Gregory Casale
Yes you do. The alcohol takes a while to dissipate through your system. Retrograde extrapolation is the process by which you estimate the effects of something later with a current measurement. I often argue this in DUI/OUI cases. The government must prove your impairment at the time of operation. It doesn't matter what you blew at the police station. I must warn you though, it will likely take an expert to use this defense as a lay person is unqualified to explain it.
Answer Applies to: Massachusetts
Timothy J. Thill P.C. | Timothy J. Thill
If you can find a witness to back up your story, and provide expert testimony about how long it takes for the alcohol to affect your ability to operate a car, you might win this case at a trial. You do not indicate whether you took a breath test or not. The results of that test, along with the time it was administered, might also work in your favor, or it may not. Hire a defense attorney to represent you in this case, and good luck!
Answer Applies to: Illinois
MatthewR. Schutz, Esq | Matthew R. Schutz
Not in New Jersey. The NJ Supreme Court has held if you blow a 0.08 BAC, it creates a presumption you are driving under the influence and unless you can show that the testing equipment was defective, you are in deep trouble.
Answer Applies to: New Jersey
S. Joseph Schramm | Joseph Schramm
You can't raise a defense under Pennsylvania's DUI law that the alcohol had not entered your blood stream unless a blood test shows that you were not over the limit. In that case the tests would show chemical proof that the alcohol had not been absorbed. Pennysylvania's DUI law is what the state supreme court has referred to as a strict liability statute. Basically, if your breathalyzer test blood test registers an alcohol reading above the legal limit you are conclusively proven to be driving while under the influence. The only defence you can raise is that the lab tests or breathalyzer test were incorrectly performed and the evidence was damaged thereby.
Answer Applies to: Pennsylvania
Charles M. Schiff, Attorney at Law | Charles M. Schiff
In Minnesota, a test result at any time within two hours of the driving conduct is deemed to be the blood alcohol concentration at the time of driving. This was built into the DWI statute specifically to eliminate the argument that the blood alcohol concentration at the time of driving was less than the apparent result of the test.
Answer Applies to: Minnesota