Can I fight my Tacoma DUI charges?

I took a Breathalyzer hours after driving, and my blood alcohol level was over the legal limit, but I wasn’t drunk while driving.

Can I fight my DUI charges?

You can, but there’s two ways to prove a DUI, even if you use retrograde extrapolation because your breath goes up for the first hour. It’s like a bell curve.

It goes up for the first hour. Then it starts going down, but it goes down slower than it went up. Your highest alcohol is going to be one hour after your last drink. By saying, “I don’t think I was drunk at the time,” you’ve got to look at the time of when they took the breath test and when they were driving. Because truth in part, if it was two hours later, you’re going to be at the same level you were when you were driving. And the law is specific such that your BAC was within 2 hours of driving. So even if you do not think you were drunk at the time of driving, if you are an adult and you blew a .08 or higher within 2 hours of driving, you are presumed to be driving under the influence.

Now if it’s four hours later, then your level’s going to be lower. If it is within the first hour, then you could allege, “Hey, my blood alcohol was going up.”

It goes up on the average person .01 to .025 per hour. They have a formula called Widmark Formula, where you can calculate out someone’s BAC based upon a persons weight, sex, how many standard drinks they had and when they drank them. The Widmark’s calculation is the same as you see on the cards in the liquor stores. Given accurate information, the calculation is quite accurate.

As long as you are given accurate information, the state toxicologists can compute what your blood alcohol would have been at the time of driving. You could also go fast forward and say, “OK, if I had five drinks at 5:00, I weigh 180 pounds, what was my BAC then at 6:00?” They’ll say, “Oh, it was a .08.”

But let’s assume they didn’t draw the blood until two hours, what would it have been two hours later? Then they can do some calculations because it would have gone up the highest within the first hour.

It would have been coming down lower. Chances are it would have been a higher number at that point, so you could still claim it would have been a lower number at the time I was driving.

The bottom line is in Washington, there’s two ways to prove a DUI, and we’re talking alcohol. Your BAC is either higher within two hours of driving or your ability to operate a motor vehicle was affected to any appreciable degree by the alcohol you consumed.

Even if you’re a .05, you can still get a DUI because, let’s assume, you performed poorly on your field test, you almost ran into a cop car, you blew a .05. They don’t need that blood test. They can say, “Their ability to operate a motor vehicle was affected to an appreciable agree.”

For more information about DUI’s and blood alcohol test, contact The Law Offices of Barbara A. Bowden, located in Lakewood.