The Tennessee Legislature has created a presumptive level of intoxication when determining if a person is under the influence of alcohol while driving. The level is currently set at .08%, meaning eight-hundreths of one percent by weight of alcohol in the persons blood. The level of the BAC (Blood Alcohol Content) is determined by the accused submitting to a breath, blood, or urine test. The intricacies of each of these tests will be discussed in a separate post.
I often have potential clients come to me with blood or breath tests over the presumptive legal amount. Sometimes even twice the legal amount. The question - can these types of cases be beat?
Short answer - yes. But it takes a skilled attorney to even recognize the potential problems and errors that are accompanied by these tests.
First it is important that the law only creates a rebuttable presumption. This means that even though the prosecution can introduce proof of the level of your BAC, the defense is free to also put on proof (evidence) that the test is inaccurate. A jury is always free to disregard the presumption if they believe the test is not accurate.
In blood and breath tests there are a wide variety of factors that come into play as to the accuracy of the tests. A skilled DUI attorney has spent countless hours reading and studying medical journals, instruction manuals, hospital policies, and even microwave particle analysis.
For example, in my last trial the prosecution called the hospital nurse who extracted the blood sample from my client. The nurse testified that the blood kit used came with two tubes in which the blood was to be placed. The nurse testified under cross examination that the tubes were equipped with grey top stoppers. His testimony was that it was VERY important to use tubes that had grey tops for blood analysis. The grey top tubes come with certain preservatives and anticoagulants that are necessary for storage of the blood. Next the officer testified for the prosecution. The officer testified that the color of the tube tops was orange.
As you can see, it is very important to hire a skilled DUI attorney who would even know to ask witnesses about the color of the tube tops. There are many attorneys who practice DUI defense who do not wish to educate themselves on the various blood testing techniques. Many begin advising their clients to plea guilty when they receive a BAC result over .08 without even investigating the facts.
On May 26,2011 a jury heard proof of a .16% BAC and returned a verdict of not guilty as to the charge of Driving Under the Influence. While I will never know why the jury chose to find my client not guilty, I like to believe that I was able to expose the errors that can and do occur.
Remember, any test is only as accurate as the way it was administered and scored. If you do not properly administer the test - the results are not valid. If you improperly score or evaluate the test - the results are invalid. If you have been charged with DUI and your BAC is .08% or greater, don't just throw up your hands and give up. Hire an experienced attorney and evaluate the test.
