Hurley Burish and Stanton, SC Attorneys at law

.08 or Higher Doesn’t Mean You’re Guilty

By: Attorney David E. Saperstein
Phone: 608-257-0945

If you are wondering whether there is any point in “fighting” a drunk driving charge if your blood or breath test reveal a result of .08 or higher, the answer is quite possibly YES. Thanks to the well-established physiological process known as “alcohol absorption,” even if your blood alcohol result (measured from a breath test administered at the police station or from a blood extraction) is .08 or higher, you may still have a viable defense.

When you consume an alcoholic drink, whether it’s beer, wine or hard liquor, the alcohol (ethanol) in that drink does not immediately absorb fully into your blood and tissues. It takes time. How much time depends on many factors, including your weight, gender, whether you had food in your stomach and your unique metabolism, to name a few. It can take anywhere from 30 to 90 minutes for an alcoholic drink to fully absorb in your blood and tissues.

When you are charged with Operating a Motor Vehicle While Intoxicated (OWI) and Operating a Motor Vehicle with a Prohibited Alcohol Concentration (PAC), the prosecution must prove that your ability to safely operate a motor vehicle was “impaired” by alcohol and that your blood alcohol concentration (BAC) was .08 or above at the time you were driving. However, when you are stopped by police, and an OWI investigation ensues, the breath test or blood test doesn’t occur until after you are taken to the police station or hospital, which is typically an hour after you were last driving.
A breath or blood test is designed to measure the amount of alcohol that has been absorbed and has reached your brain, thereby affecting your thinking process, motor skills and reaction time. Alcohol must be absorbed in your bloodstream and tissues to fully impair the centers of your brain that control functions relevant to driving (both motor and cognitive centers). If the alcohol you have consumed is not fully absorbed, then those centers of your brain may not be impaired, and you may be actually and legally able to drive.

Between the stop of your car and the breath or blood test there are typically field sobriety tests administered at the location of the stop. Those tests take time. Transporting you to the police station or hospital takes time. So there is always a delay between the time you stop driving, and the time the breath test or the blood test is administered. During that time, your blood alcohol concentration may be increasing as the alcohol you recently consumed is absorbing. So, by the time your breath or blood are taken, the ensuing test result may not reflect the actual concentration of alcohol in your blood at the time you were driving. This defense to OWI/PAC is known as a “curve defense.”