Is Drinking After Driving a defense to a DUI/OWI? Everyone knows about driving after drinking. But, what happens if the police do not stop a person at the scene but some time later after the person had been at home drinking. This article explains the details of the drinking after driving defense.
It is common knowledge that a person caught operating a motor vehicle after consuming alcohol with a BAC .08 or higher and the alcohol impaired the ability to operate the motor vehicle safely, he or she can be convicted of a drinking and driving offense. Michigan Drinking and Driving Penalties
But what about drinking after driving? Is that a viable defense? Most of the time when a drinking and driving arrest occurs it happens on the side of the road. But what about cases where police interview the driver not on the side of the road but at the person’s home, minutes, an hour or more later?
A recent telephone conversation, combined with my experience of driving after drinking cases prompted me to write this article.
Drinking after Driving Scenarios
In a recent telephone consultation the client relayed the following facts. The driver had slid his vehicle into a ditch. Rather than wait around at the scene, the driver went home after a friend had picked him up. At some point, later in the evening the police arrived at his home to investigate the accident. The driver had been drinking at his house. A liquor bottle had been found on the lawn. The client did not admit to driving under the influence. There were no witnesses to the accident. The police arrested him for drunk driving.
Another example from a case I handled in the past had to do with a client who drove to a local store to purchase a bottle of wine. As she pulled into the parking lot, she hit the driver door of a parked vehicle. Witnesses saw the incident and copied her license plate number. After hitting the vehicle, the client went into the store and bought a bottle of wine. The store clerks did not indicate to police that she appeared intoxicated. She left without waiting for the police to discuss the accident. The police arrived at her house an hour later. They assumed she had been drinking and driving because she smelled like alcohol. She had been arrested. Ultimately, based on a motion, the court dismissed the case because the police did not have probable cause to arrest the client for OWI. Also, given her BAC, the mathematical formula showed she could not have been drinking prior to driving.
As the second example shows, drinking after driving can be a defense to an OWI/DUI.
The drinking after driving defense explained.
The defense is based on the body’s ability to metabolize alcohol and the facts of the particular case. The drinking after driving argument asserts that at the time a person operated the motor vehicle he or she had been sober or at least under the legal limit. Only later, after the individual reached a place of safety, did he or she start to drink alcohol. When the officers arrived at the home and tested the individual, he or she was over the legal limit. The officers then assume, that the person had been drinking before driving. But, how can a person prove that he or she had been drinking after driving.
The defense is comprised of two basic premises:
- Operating While Intoxicated (OWI aka DUI) – Michigan law states that it is illegal to operate a motor vehicle while intoxicated, that is, over .08. The law, however, does not make it illegal to be intoxicated in your home, yard, etc.
- Officers cannot determine if you had been drinking prior to driving – If police get dispatched to an accident and arrive on the scene a few moments later and see that a person is intoxicated it will be hard to present this defense. However, if the police arrive a significant time later and find a person intoxicated how do they know the person did not start drinking after the accident. This is especially true if the police find evidence of alcohol in the car or at the person’s home. In this scenario, the individual may be able to present the defense because the police do not have evidence that the person was drinking before driving.
Does the defense have merit?
Yes, drinking after driving can be a strong defense dependent upon the facts of the case. The defense can be weak if the police find a person extremely intoxicated within minutes of arriving at your home after an accident.
In order to have a strong drinking after driving defense, the following facts should be present:
- The breath test or blood draw indicates a low blood alcohol content; the low BAC supports the argument that the person recently started drinking
- Witnesses saw when the person started drinking, or saw that he or she was not intoxicated when the individual first got out of the car
- Receipts show when the person purchased the alcohol
- Based on the BAC and the mathematical formula, the individual’s BAC could not have been over the legal limit at the time of operation
- Other facts may support the defense as each case is factually different
The science of the defense
The science aspect of the defense relates to alcohol metabolism. The defense is usually asserted in cases where the police contact the driver after the accident. Sometimes the police arrive an hour later or even longer. Other times, they arrive only minutes later. If the person exhibits evidence of intoxication such as glassy eyes, slurred speech, and odor of intoxicants the police will suspect the driver had been drinking before driving. They will ask for a breath test which will usually be over the legal limit.
Timing is critical when it comes to the drinking after driving defense. The level of alcohol in a person’s blood requires an understanding of the body’s metabolic process. After a person has consumed alcohol, it is immediately absorbed into the bloodstream. Once in the bloodstream, the amount of alcohol can be measured and verified. How quickly the alcohol is absorbed will fluctuate depending upon whether a person has food in his or her stomach.
One key part of the defense is that the person must admit to consuming alcohol. In fact, the person must admit to drinking enough alcohol to reach the amount measured in the blood. In this sense, the person has admitted to drinking. This is of course, one element of a drinking and driving prosecution. So, caution must be used when relying on this defense.
Here is how the drinking after driving defense plays out. The prosecutor will make the argument, relying on a mathematical formula, that if a person’s BAC was .20 when the police encountered the driver, the person was undoubtedly over .08 at the time of operation only 20 minutes ago. This is an extreme example but it does explain how the prosecutor will use the mathematical formula to extrapolate the person’s BAC at the time of operation. Lower alcohol levels, and/or after a significant amount of time has lapsed when the police arrive will make it harder for the prosecution to prove that the person was operating while intoxicated.
In order to use this defense successfully, the client must provide the attorney with an accurate statement of facts. It is very fact specific and does not apply to every case. Specifically, the client must tell the attorney how much alcohol had been consumed and during what time frame. This is a critical step in the formulation of the defense. I want to make one point very clear. Michigan has a statutory presumption that the driver’s BAC at the time of the breath or blood test was the same as it was at the time of operation of the motor vehicle. The drinking after driving defense must overcome that presumption.
A mathematical formula provides a basis upon which to build the defense. It is based on the body’s ability to metabolize alcohol. A person starts to “eliminate” alcohol from the body immediately after drinking. It is widely accepted that normal rates of elimination are between .01 and .02% per hour for the average person.
The elimination rate is where math forms the basis of the drinking after driving defense. The essential part of the defense is this: The driver’s blood-alcohol concentration (BAC) can be compared to the values one would expect to see if that person consumed alcohol after driving. The defense rests of the use of the theoretical Widmark calculations. In other words, the Widmark formula is used to calculate or approximate the person’s expected BAC level for the amount of alcohol he or she consumed in a given amount of time.
This method is also known as “retrograde extrapolation.” Essentially, defense attorneys and prosecutors use the method to estimates a person’s BAC at the time of driving a vehicle based upon a chemical test result conducted by the police must later in time. Prosecutors will use retrograde extrapolation to argue that a person’s BAC at the time of operation was equal to or greater than the legal limit of .08 based on a test minutes or even hours after.
The defense uses the formula to create reasonable doubt about the BAC at the time of operation. The drinking after driving defense is strongest when the BAC results show a lower blood alcohol level. The defense will need to rely on a credible explanation of the amount of alcohol a person consumed and over what time frame. Independent witnesses who can testify to the drinking after driving would also be beneficial. Physical evidence consisting of empty liquor bottles and time stamped receipts will also aid in the arguments that the person’s BAC was under the legal limit at the time of operation.
If you have been charged with a drinking and driving offense you should talk to an experienced defense attorney. There are many defenses that can be used to challenge your arrest and charges.
Contact us at any time, that means, 24-7/365. We are more than willing to answer any questions that you may have regarding your case.
Any consultation either by telephone or in our office is free. We have flexible payment plans and we are willing to work with you. We understand that people do not budget for a defense attorney because most people do not expect to be in that position.
JAMES E. CZARNECKI II (586) 718-2345
GENEVIEVE L. TAYLOR (586) 350-6044
Visit our website: CZARNECKI & TAYLOR website