posted on Jan, 22 2009 @ 08:35 PM
As a former prosecutor, I was often forced to take cases to trial or negotiation with no blood alcohol test or with test results below the presumed
level of intoxication, .08 blood alcohol content (BAC). These cases were winnable more often than not because of other credible evidence that
established that the driver was intoxicated at the time he or she was operating their vehicle.
In atypical DUI stop, the arresting officer is under certain time constraints to administer a Breathalyzer or other blood alcohol test. Because of a
normal person’s metabolism, his BAC will change at a fixed rate over time. Although it can rise as well as fall, BAC will usually begin dropping
within an hour of the driver’s last drink.
In some situations, though, delay is inevitable. Where a stop is made far from the nearest satellite station, an hour can elapse between the time of
the stop and the time of arrival at the station. Moreover, the officer must observe the suspect for at least fifteen minutes at the testing facility
to assure that no foreign substances or additional drinks are ingested.
If the suspect’s vehicle is disabled or involved in an accident, there will be more time spent in the field than most officers would prefer. It is
almost always necessary to secure and tow the vehicle as well, which only adds more time between the stop and the test.
The officer and prosecutor can always present the cliched “usual signs of intoxication:”
Unsteady on the feet,
Smell of alcohol on the breath, and
Of course, almost every police car today is equipped with a video tape system to record the driver’s behavior and condition at the scene of the
stop. Even without video, a good prosecutor and officer can get a conviction. In our county, we frequently left out some evidence that didn’t help
us when other factors were present or better. A “No test, No tape” conviction was a badge of honor, and it was easier than you would expect to
get positive results.
I once had a case with a Texas State Trooper, an excellent witness, with no test and no tape. The defendant was a minister who appeared at trial in
his collar and frock. Our single witness was so good, and the defendant so bad (his attorney foolishly put him on the stand) that it took a Bexar
County jury (notoriously pious and liberal) 10 minutes to convict.
The lack of a BAC test, or results below the presumed level of intoxication, does not guarantee an acquittal or dismissal. Sometimes the driver is
his own worst witness, depending on his conduct at the scene and at the station. The safest bet is not to drink and drive. If you are unfortunate
enough to be in a situation where you are stopped, do not provide additional evidence against yourself. Be on your best behavior, don’t speak
without an attorney present, and always insist on the presence of an attorney if any field sobriety or station house tests are offered.