DUI and Retrograde Extrapolation

Delayed Blood-Alcohol Estimates Draw Criticism in Cases.

The way prosecutors saw it, the Defendant was driving while intoxicated when he raced own a Long Island freeway at 100mph this summer and slammed into a car carrying a family home from church. The fiery wreck killed a father and his two children. The defendant’s blood-alcohol reading, taken Retrograde Extrapolationabout four hours later, was 0.06 which is below the legal limit of 0.08. The Defendant was still charged with Driving under the influence and vehicular homicide because a forensic technique estimated that his blood-alcohol level at the time of the crash was actually 0.12.

This technique is known as retrograde extrapolation and has been used to win convictions in DUI cases nationwide for decades, but has increasingly come under scrutiny by drunken-driving experts as an unreliable measure of a person’s intoxication. Some defense attorneys have even labeled it junk science. A former prosecutor who is representing the Defendant stated that, “Retrograde extrapolation is about as scientifically reliable as astrology. It relies on the assumption that a person’s blood-alcohol content peaked prior to the arrest without any basis to prove that.”

While there are no national statistics to document the use of retrograde extrapolation, prosecutors in many states have offered evidence of estimated intoxication levels at trial, whereas, courts in other states have severely restricted its use requiring prosecutors to use only blood-alcohol readings taken at the time of arrest. Prosecutors who have used retrograde extrapolation swear by it as a proven technique that doesn’t reward DUI suspects for fleeing the scene and avoiding immediate blood-alcohol testing. Experts say the intoxicating effects of alcohol are not experienced until it is absorbed into the blood stream. After a person stops drinking, the blood-alcohol level peaks when the most alcohol has been absorbed and the least amount of alcohol has been eliminated. Defense attorneys argue that alcohol absorption and elimination rates vary widely depending on a person’s gender, drinking habits, the type of beverage, what a person ate and how much, and whether a person had experienced trauma, which sometimes slows the rate.

Don’t trust the junk science. If the police “expert” says a person was drunk, you need to hire an experienced DUI attorney who knows how to attack drunk driving, and DWI, charges. The experienced DUI attorneys at Durflinger Oliver & Associates will meet with you for free and explain your options. Call today, and ask about our convenient payment plans and military discount – 253-683-4180.

Criminal Attorney

Weed and Driving Okay?

DUI Stoned Driver

False Advertising?

If you want to avoid a car crash, trade a joint for that glass of wine. A study from the National Highway Traffic Safety Administration (NHTSA) found that drivers who used marijuana were at a significantly lower risk for a crash than drivers who used alcohol. After adjusting for age, gender, race and alcohol use, drivers with marijuana in their system were at about the same level of accident risk as those who had not used any drugs or alcohol prior to driving. Apparently, weed and driving are okay.

Interestingly enough antidepressants, pain killers, stimulants and quite a few other legal and illegal drugs do not significantly increase the risk of being in a crash. Alcohol use greatly increases the likelihood of an accident even at modest blood concentrations. In fact, a blood alcohol concentration over 0.05 increases your odds of a wreck nearly seven fold.

The study’s findings underscore an important point: The measurable presence of THC (marijuana’s primary active ingredient) in a person’s system doesn’t correlate with impairment in the same way that blood alcohol concentration does.

The NHTSA study points out that “At the current time, specific drug concentration levels cannot be reliably equated with a specific degree of driver impairment.” There are many reasons why detectable drug presence doesn’t indicate impairment the way it does with alcohol. Most psychoactive drugs are chemically complex molecules whose absorption, action and elimination from the body are difficult to predict. Also, there are considerable differences that exist between individuals with regard to the rates with which these processes occur. Alcohol is more predictable. In heavy marijuana users, measurable amount of THC can be detected in the body days and even weeks after the last use, and long after any psychoactive effects remain. Washington Initiative 502, passed in 2012, set a legal limit at which the driver is automatically determined to be impaired at 5 of nanograms of active THC per milliliter of blood. However, this number tells us nothing about whether a person is impaired or fit to drive.

DUI Investigation

DUI Drunk Driving

DUI Investigation

If a cop thinks you’ve broken the law, he can pull you over. Once he pulls you over, he can demand your license, registration, and proof of insurance. He can also run your name to find any outstanding warrants, and to see if your license is current. If, however, he wants to do much more than write you a ticket and send you on your way, then he needs reasonable suspicion that you were involved in criminal behavior.

So how does a cop get to pull you out of your car? The answer is found in State v. Allen, 138 Wn.App. 463,471 (2007). The Allen Court held that an officer can remove a driver from a vehicle stopped for an infraction for two different reasons: (1) Removal is within in the scope of the original traffic stop, or (2) the officer has acquired a lawful, reasonable suspicion that justifies further investigation. Id. At 471. The Allen Court held that an officer’s removal of a driver from a vehicle was not within the scope of traffic stop for a license plate violation, when the driver was questioned regarding the passenger’s identity. The court called the officer’s interrogation of the driver a “fishing expedition”. Id. at 471 (citing State v. Reding, 199 Wn.2d 685 (1992)).

Once the traffic-related purpose of the stop was fulfilled, further detention without a reasonable suspicion of criminal activity was improper. State v. Armenta, 134 Wn.2d 1, 15-16 (1997). If the officer isn’t justified in taking you out of your car, then your attorney might be able to convince a court to suppress any negative evidence that the officer discovered after you got out of the car. See State v. O’Neill, 148 Wa.2d 564, 583 (2003). When “an unconstitutional search or seizure occurs, all subsequently uncovered evidence becomes fruit of the poisonous tree and must be suppressed.” State v. Kennedy, 107 Wn.2d 1 (1986).

You can trust the former prosecutors and experienced defense attorneys at Durflinger Oliver & Associates to do everything possible to defend you and protect your future. Call today to schedule your free consultation, and ask us about a military discount and easy payment plans.



James E. Oliver, Esq.

James E. Oliver, Esq.

 

James Edmund Oliver, Jr. is a criminal attorney with over 15 years of experience representing defendants in serious criminal cases. Some of the more common charges he defends against are drugs, firearms, assault, and theft. James completed his legal studies at Seattle University School of Law where he graduated in 1998 with a Juris Doctor degree. Jim has established himself as respected and zealous advocate for a wide variety of clients.

Don’t Trust Cop Tests

Tacoma DUI Tests

If a cop has you do a test, he already thinks your drunk. Guess what his test will show?

If you’re pulled over for driving under the influence, don’t trust the cop’s tests. Too many people think that the cops and the machines they use are perfect. The fact is they’re not even close to great much less perfect.

Any Tacoma DUI attorney will tell you that the Preliminary Breath Test cops “offer” in the field isn’t even allowed in trial for proof of DUI. It gets even better with the Datamaster machine, which went out of production in the late 1980s and is no longer warranteed to accurately test for blood alcohol concentration (BAC). Over the years, there have been numerous problems with Datamasters and the people who certify them. One thing even the cops have to agree with is that there is a margin of error in every test. That means that the number the machine spits out about your blood alcohol concentration is really only an estimate.

Cops and State experts also have to agree that the machines can give bogus numbers indicating a driver is drunk even if he isn’t. That’s why it’s important to have an experienced DUI lawyer defend you. In fact, before you take any test, you can ask to speak with a lawyer to be safe from false test results.

These false results are frequently caused by residual alcohol in the mouth of the person being tested. Even if the driver’s BAC is under the legal limit, residual alcohol can cause an exaggerated BAC reading. Residual alcohol can be caused by everything from belching to using mouth wash to booze soaked food stuck in a cavity or dental work.

For this reason, the State of Washington requires that officers remove all foreign objects from the driver’s mouth and observe him/her for at least 15 minutes before administering the BAC test. Removing foreign objects (food, dip, studs, gum) prevents alcohol from “hiding” in these items and causing a false high reading. The 15 minute observation period allows the residual alcohol to evaporate off. Of course, officers do not always follow these requirements and this can lead to an inaccurate result.

If you have been charged with driving under the influence in Tacoma, Puyallup, Fife, Fircrest, Lakewood, Seattle, or any other puget sound court, an experienced DUI attorney at Durflinger Oliver & Associates is ready to help. Call today for a free consultation.