What Happens on the First Court Date in a DuPage DUI Case

The sizable majority of people who get arrested for DUI have never been to court for anything more than a routine traffic ticket. As a DuPage DUI Defense Attorney, I am frequently asked about what happens in court on the first DUI court date if one does not have a lawyer.

After being arrested for DUI most defendants "bond out" and receive a scheduled court date as part of their bail bond.  If you were driving on a public roadway or in "actual physical control of a vehicle" on public property, when you were arrested you also would typically receive a "Notice of Summary Suspension" or "Law Enforcement Sworn Report."

On the first court date for a DuPage DUI the court would basically address two issues.  One would be arraignment of the criminal charges against you.  This would be where the judge advises you of the nature of the charges against you and informs you of the range of possible penalties.  The judge will also inquire about whether you intend to hire an attorney.  If you need time to hire an attorney the judge will typically give you a continuance for that purpose.  However, the continuance would not delay the onset of the summary suspension.

If you've filed a petition to rescind the statutory summary suspension of your driver's license, the court will also ask if you are prepared to proceed to a hearing on that matter.

For a free consultation on DUI representation in DuPage call Wheaton DUI Attorney, Brent Christensen at 630-665-5965.

Court Supervision for a DUI Could Mean Trouble for

Court Supervision is available once in a lifetime in Illinois for DUI sentencing purposes. And indeed for DUI offenders who are eligible, DuPage Judges will typically impose court supervision rather than a conviction because of the downstream consequences of a DUI conviction (upon conviction for DUI the Secretary of State shall revoke the Defendant's driver's license).  Court Supervision is, by definition not a conviction.

The problem is that some jurisdictions don't recognize the Illinois regime for Court Supervision.  Most notable among these jurisdictions is Canada.  Canada considers DUI to be a "serious offense" and can be a basis for Canada to bar entry into the country.

Some DuPage DUI defense attorneys overlook this fact and will not address the issue properly before plea bargaining.  Thus setting their client up for a big surprise down the road when he or she has to go to Toronto or somewhere else in the Great White North for business or pleasure.

If you regularly travel to Canada and have a DuPage DUI case pending make sure to discuss this with your attorney before you agree to Court Supervision.  If you've had supervision for a DUI within the last five years and are expecting to travel to Canada, you should contact the Canadian consulate.

Getting a DuPage DUI Without Driving

Let's say you've just walked out of a bar after having one too many.  You get to your car in the parking lot put the keys in the ignition but then decide that you shouldn't drive.  You leave the car running, put the seat back and sleep it off.

Unfortunately, you can still be charged with a DUI.  While you wouldn't be at risk for getting a statutory summary suspension in this scenario because you didn't drive on a public roadway, you could still be charged - still found guilty - of the criminal offense of Driving under the Influence of alcohol.  As a DuPage DUI Attorney, I can tell you that these types of cases are not rare.

Why these cases are not rare is explainable by two factors:  The language of Illinois' DUI statute and the sometimes ridiculously strict  enforcement regime for Dupage DUIs.

DUIs in DuPage - whether they are charged under local ordinance as  a Naperville DUI or Wheaton DUI ,
or whether they are charged under by say the Illinois State Police - are all based on the Illinois Vehicle Code:

Sec. 11-501. Driving while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination thereof.
    (a) A person shall not drive or be in actual physical control of any vehicle within this State while:
        (1) the alcohol concentration in the person's blood

or breath is 0.08 or more based on the definition of blood and breath units in Section 11-501.2;

(2) under the influence of alcohol;         (3) under the influence of any intoxicating compound

or combination of intoxicating compounds to a degree that renders the person incapable of driving safely;

(4) under the influence of any other drug or

combination of drugs to a degree that renders the person incapable of safely driving;

(5) under the combined influence of alcohol, other

drug or drugs, or intoxicating compound or compounds to a degree that renders the person incapable of safely driving; or

(6) there is any amount of a drug, substance, or

compound in the person's breath, blood, or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act, a controlled substance listed in the Illinois Controlled Substances Act, an intoxicating compound listed in the Use of Intoxicating Compounds Act, or methamphetamine as listed in the Methamphetamine Control and Community Protection Act.

A careful reading of the statute indicates just how it is you could get a DUI even if you weren't driving.  Being in "actual physical control" of any motor vehicle within the State is the key phrase.  Reviewing DUI case law will reveal a consistent theme:  Whether there is "actual physical control" is to be determined on a "case by case basis."  Unfortunately for well-intentioned drivers who think they'll be fine by "just sleeping it off" this case-by-case analysis has resulted in a line of appellate cases that suggest if the keys are anywhere near the driver, much less the ignition, the defendant can be found guilty of Driving Under the Influence of Alcohol, even though there was no driving.

If you need to discuss this issue with DuPage DUI Lawyer Brent Christensen, feel free to comment on this post or call 630-665-5965.

DUI Not the Only Way to Lose Your License as a Result of Alcohol Consumption

As I've discussed before in this blog, part of a DuPage DUI charge usually includes not only a criminal component, but also a civil, driver's license suspension component.  Although it is my job to defend drivers who've been charged with DUI in DuPage County, I can understand the legislative intent in taking away someone's driver's license when its likely they've abused the license by negligently deciding to drive.

But what if you haven't been driving at all?  I'm not talking about sitting in the car with the keys in the ignition when your drunk.  As I've discussed before even this innocuous behavior can and does result in DUI charges.  What if you're just at a party and the police are somehow called?  And what if you're underage?
Remember no cars, no driving.

Well believe it or not if someone under the age of 21 is caught by the police having consumed any amount of alcohol that unlucky person could be charged with underage consumption of alcohol.  OK that's not so surprising.  But what if a DUI defense lawyer like myself were to tell you that even if this under 21 year old
pled guilty and received court supervision for this "drinking ticket" the Illinois Secretary of State would suspend that driver's license for 12 months.

Yep, that's right.  You can join the Army, go to Afghanistan, fight for your country, come home with PTSD and go to a welcome back party before your 21st birthday.  If you're then talking to a friend and a police officer happens by and smells the odor of alcohol . . .you can be arrested.  You go to court without a lawyer, plead guilty, get court supervision and then the bomb really drops when Jesse White sends you a letter telling you your license is suspended.

As a  DuPage DUI Defense attorney occasionally clients approach me with this type of problem.  Frequently the solution is to plea bargain with the prosecutor for an amendment of the charge to something like disorderly conduct which does not carry a mandatory or discretionary license suspension.  If you've been arrested for DUI or any alcohol related offense the Law Offices of Brent M. Christensen can help.  Call 630-665-5965 for an appointment.

Top Three Things Not to Do if You're Stopped by Police After Consuming Alcohol

In DuPage DUI cases, the question of whether to submit to chemical testing is not the first issue.  Indeed, how you handle yourself during the initial traffic stop could either create more defense options in court or reduce them.  For purposes of this discussion let's assume that for whatever reason, you have consumed an amount of alcohol that would probably put you over the legal blood alcohol limit of .08 and are driving yourself home and you get pulled over.

Here are the Top Three Things NOT to DO:

Number 3: Do Not Admit to consuming alcohol

The best way to do this is to take the 5th amendment. Saying "On advice from counsel, I rely on the protections afforded me under the 5th Amendment of the U.S. Constitution and therefore respectfully decline to answer."  If you have your wits about you, you can use this answer for virtually every question the police ask you in a potential DUI traffic stop.  So when the police ask, "where are you coming from," or "how much have you had to drink," taking the 5th can be a smart option.

This won't get you out of being arrested. If the police officer asks you this question, even if you don't think you're "that drunk" there is a high likelihood that if the cop asks you this question he has already concluded that you have been drinking. Now he wants you to admit it. By using "taking the 5th" you give yourself and your lawyer something to work with in court.

If you're going to use this strategy then you should use it all the way.  Except for routine booking questions like "what is your name" and "what is your address"  taking the 5th amendment is a response that you can give to any question by the police at any time.
Number 2:  Don't Do Field Sobriety Tests
There are three standardized field sobriety tests. The horizontal gaze nystagmus test (HGN) is an eye test. If the officer asks to look at your eyes and follow his finger or something else, he's trying to get you to do this test. Put your hand briefly over your eyes and say "a lawyer told me not to do any tests.".

The same is true of the other two field sobriety tests: the walk and turn test and the one leg stand test. If the officer asks you if you know the alphabet, say "of course but a lawyer advised me not to do a test of reciting the alphabet."

Number 1: Never take a breath test on the street

There are two types of breath testing machines. One is a portable breath tester the other is larger at the police station. Refusing a portable breath test on the street is different from refusing the one at the station. If asked to blow in a PBT on the street. I would almost always advise you to just say "NO!"

Refusal of the PBT will not result in any driver's license sanction.  Although the Officer may tell you he'll let you go if you blow under the legal limit, don't believe him.  If he's asking you to take this test, in my 18 years experience as a DUI defense lawyer, I can say categorically that the cop has already made the decision to arrest you.  He is asking you to take the test to build his case.  Don't let him do it.  Always refuse the PBT.
Brent Christensen is a DUI Defense attorney with a practice in Wheaton, Illinois

To Blow, or Not to Blow . . . That is the DUI Question

As a DUI Defense Lawyer, I am frequently asked the question of whether one who's been arrested for a DUI should submit to chemical testing (breath, blood, or urine).  To generalize with a simple yes or no is unfortunately not the correct answer.  Indeed, whether to submit or not to chemical tests depends on a number of factors that most people just don't think about before they are pulled over for a Wheaton DUI. 

Watch this blog over the next several weeks and we'll try to go through scenarios where it makes sense to submit and other scenarios where it does not make sense.  In today's installment, we discuss the situation when you've already decided firmly to refuse and the police won't seem to take "no" for an answer.  In this situation, even if the Police threaten you with obtaining a warrant - indeed - even if they have a warrant to take your blood by force - if you've decided to refuse stick with it.  A steadfast refusal could set the stage for a defense based on the 4th amendment as this article discusses.

When Does “No” Mean “No” in DUI Chemical Test Refusals

(This article by Naperville/Wheaton DUI Lawyer Brent M. Christensen will appear in the September 2011 edition of the DCBA Brief, a law journal of the DuPage County Bar Association)

It happens to every practitioner of DUI defense law at social functions.  Following the usual  chit-chat about weather and the state of one or more of Chicago’s professional sports franchises, non-lawyers and lawyers from other concentrations alike ask the question, “to blow  or not to blow” in the context of a DUI arrest.  The correct, yet invariably unsatisfying answer, “It depends,” generally results in a quick turn back to woes of the Chicago Cubs and other imminently more solvable puzzles.  However, the recent advent of so-called “No Refusal Weekends” in DUI enforcement as well as a Third District case involving a warrantless and forcible DUI blood draw invites a more detailed analysis of refusal of chemical testing in DUI arrests.

In Illinois along with every other State, the concept of “implied consent” allows the government to suspend, more or less summarily, the license of a driver whom law enforcement reasonably believes to be operating a motor vehicle on public roads while under the influence of alcohol or other intoxicants.  In Illinois, refusal of any requested chemical test – breath, urine, and/or blood – by a driver reasonably suspected of DUI will result in a license suspension of one or three years, depending on the existence and timing of any prior DUI statutory summary suspensions.  The threat of such a civil sanction for refusal of chemical testing most typically results in arrestees submitting to testing – giving the prosecution what is typically compelling evidence of guilt in the context of the criminal aspect of a DUI charge.

But what of the relatively rare arrestee who steadfastly refuses chemical testing?  Shortly before Labor Day weekend in 2011, the DuPage County State’s Attorney’s Office in conjunction with the DuPage County Sheriff’s Department announced a DUI enforcement scheme dubbed “No Refusal Weekend” where, upon probable cause, the police request a search warrant from an on-call judge for a blood test which is then expeditiously carried out by a licensed phlebotomist who is on hand typically at a DUI check point (roadblock).

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the United States Supreme Court held the taking of a blood sample without the defendant's consent or a search warrant was a “reasonable” search under the fourth amendment where there was probable cause to believe the defendant was intoxicated, and the delay caused by obtaining a search warrant might have resulted in loss of evidence of the defendant's intoxication, given the natural dissipation of the alcohol in the defendant's blood. See Schmerber, 384 U.S. at 768–72, 86 S.Ct. at 1834–36, 16 L.Ed.2d at 918–20. In examining the reasonableness of the blood test procedure itself, the Court observed blood “tests are a commonplace in these days of periodic physical examinations and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain.” Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836, 16 L.Ed.2d at 920. The Court further noted that the manner in which the procedure was conducted was reasonable, as the defendant's blood was taken “in a hospital environment according to accepted medical practices.” Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836, 16 L.Ed.2d at 920.

The Illinois Supreme Court largely adopted the reasoning in Schmerber in People v. Todd, 59 Ill.2d 534, 322 N.E.2d 447 (1975). Todd was a consolidated appeal from three DUI convictions in which the defendants sought interpretation of a provision of the Illinois Vehicle Code, arguing the statute prohibited the evidentiary use of blood samples obtained without a DUI arrestee's consent. Todd, 59 Ill.2d at 536, 322 N.E.2d 447 (citing Ill.Rev.Stat.1969, ch. 95 1/2, par. 144, and Ill.Rev.Stat.1971, ch. 95 1/2, par. 11–501).

However, the Illinois Supreme Court distinguished Todd from Schmerber on the ground that the Illinois Vehicle Code at that time afforded a  protection to DUI defendants greater than that required by Schmerber, stating Schmerber made it “clear that a compulsory blood test does not violate any constitutional rights of an individual merely because he objected to such tests.” Todd, 59 Ill.2d at 544, 322 N.E.2d 447.  In Todd, the Illinois Supreme Court held that Illinois’ DUI statute did require consent to chemical testing for test results to be admissible as evidence. Todd, 59 Ill.2d at 544, 322 N.E.2d 447.   The Todd court focused its attention on the statutory language of Section 11–501 the Vehicle Code, which, at the time provided:

“Evidence based upon a chemical analysis of blood, urine, breath or other bodily substance shall not be admitted unless such substance was procured and such analysis made with the consent of the person as provided by this Chapter, whose bodily substance was so analyzed.” (Emphasis added.) Ill.Rev.Stat.1975, ch. 95 1/2, par. 11–501(c)(3).”

This “right,” discussed in Todd to refuse chemical testing was, in turn, repealed by Public Act 84–272, effective January 1, 1986. The current version of this provision can be found in Section 11-501.2(c)(1) of the Vehicle Code which provides::

“If a person under arrest refuses to submit to a chemical test * * *, evidence of refusal shall be admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person under the influence of alcohol, or other drugs, or combination of both was driving or in actual physical control of a motor vehicle.” Ill.Rev.Stat.1981, ch. 95 1/2, par. 11–501.2(c).

But this amendment along with a line of appellate cases discussing it went only to the admissibility of the refusal in a criminal prosecution.  In the context of a “no refusal weekend,” the immediate issue is not admissibility in the incipient future proceeding, but rather whether, in light of a search warrant, refusal to submit to blood testing could result in a garden-variety DUI arrestee being tied down in order for agents of the State to procure blood evidence ab initio.

In People v. Jones, 214 Ill.2d 187, 824 N.E.2d 239, 291 Ill.Dec. 663 (2005) the Illinois Supreme Court passed on the lack of a “right” to refuse chemical testing in light of the 1986 changes to the vehicle code.  In that case, Defendant Jones was arrested for DUI and hospital personnel administered blood and urine tests at the request of the arresting officer, but without defendant's consent.   Jones moved to suppress the results of the blood and urine tests on the ground the tests were nonconsensual. Circuit Judge Geoge Bakalis granted the defendant's motion and ordered suppression of the test results. The State appealed, and the appellate court affirmed the suppression order. The Supreme Court reversed the Appellate Court, holding that Section 11–501.2 of the Illinois Vehicle Code (625 ILCS 5/11–501.2) did not grant a statutory right to refuse chemical testing to a DUI arrestee in a situation not involving the death or personal injury of another. But the Supreme Court took some pains to clarify its position on the notion that that blood could be forcibly drawn:

“For purposes of clarification, our holding in this case does not give law enforcement officers unbridled authority to order and conduct chemical tests. We do not suggest that a DUI arrestee's lack of a right to refuse chemical testing under section 11–501.2(c)(2) permits law enforcement officers to use physical force in obtaining blood, urine, and breath samples. The Vehicle Code already eliminates any advantage a DUI arrestee might hope to gain from refusing chemical testing. Under section 11–501.2(c)(1), if a DUI arrestee refuses to submit to chemical testing, evidence of the refusal is admissible in the arrestee's DUI prosecution.”

The issue of whether the Police can use force to obtain a blood test in a DUI  left the realm of dicta recently in People v. Farris,  968 N.E.2d 191, 360 Ill.Dec. 112 (3^rd District 2012).  In that case, the Appellate Court confronted a situation where the arresting police officer sought consent from a DUI arrestee for a blood draw in a hospital emergency department following a motor vehicle crash. The defendant refused consent. The arresting officer then instructed a nurse to take a sample of the arrestee’s blood. Two police officers stood by while a doctor, a nurse, and another emergency department staff member held the defendant down and forcibly drew blood. One person was on either side of the defendant, each holding a wrist and shoulder, while another person held the arrestee’s legs as the nurse drew blood from one of the arm inside of the elbow.

The result of this forcible blood draw was suppressed in the trial court and the State appealed.  Relying heavily on the reasoning (and dicta) in Jones, the Appellate Court affirmed the trial court’s finding that the arresting officer lacked statutory authority to use force to obtain a blood sample.  Left unanswered, however, is the question potentially posed by a “no refusal weekend” regime.  What about a forcible blood draw in the context of a search warrant?

The forcible blood draw in Farris was without warrant.  As indicated earlier in this article, the typical “no refusal weekend” scheme centers on the police obtaining a warrant from an on-call judge for a blood draw.  If a judge issued a requested warrant specifically providing that force could be used to obtain a blood sample, it is difficult to see how the rulings in Jones or Farris would protect a non-consenting DUI arrestee from a forcible blood draw ordered by a warrant.  Under the U.S. Supreme Court’s reasoning in Schmerber it would appear that such an intrusion would not violate the 4^th Amendment proscription against unreasonable search.

As a practical matter, it is difficult to imagine  a “no refusal weekend” scenario where a judge would sign a warrant specifically authorizing a forcible blood draw for an arrestee without a significant DUI history with no aggravating factors such as an accompanying motor vehicle accident with injuries.  More likely, the issue of a forcible blood draw pursuant to a warrant would arise under more severe circumstances.  In either event, Illinois case law is still unsettled on this most unsettling prospect of a “no refusal weekend.”  Until that question is addressed head-on, the practitioner is well advised to stick to “It depends . . .” as the answer to the broad question of whether or not to submit to chemical testing following a DUI arrest.

By:  Brent Christensen, Attorney at Law

Naperville DUI Arrests Again Top DuPage County Municipalities

According to the Alliance Against Intoxicated Motorists, Naperville DUI arrests have once again topped DuPage County DUI statistics.For the fifth straight year, Rockford has cuffed more drunken-driving suspects than any other Illinois city outside Chicago, according to an annual survey by the Alliance Against Intoxicated Motorists.
A total of 686 drivers were arrested in Rockford last year, followed by Naperville with 622 and Springfield with 553
.
The Alliance Against Intoxicated Motorists gathered DUI arrest data from more than 500 police departments around the state through a grant from the Illinois Department of Transportation.
AAIM officials say topping the list does not necessarily mean a city has more drunken drivers than other cities and is instead a credit to those departments' enforcement.

In Rockford, four traffic investigators are dedicated to arresting drunken drivers, and the city uses technology to map problem areas, according to Lt. Christine Bishop, the department's traffic commander.
"We take drinking and driving very seriously in Rockford because it's a needless, senseless crime," Bishop said. "People die because of drunk drivers, and it's completely preventable."
Rounding out the top 10 cities for DUI arrests are Rock Island (465), Decatur (448), Elmhurst (367), Elgin (352), Carol Stream (349), Peoria (306) and Normal (296).

In Chicago, which was counted separately, police collared 3,037 DUI suspects in 2011, down about 17.8 percent from the year before. Illinois State Police arrested 9,719 DUI suspects in 2011, a 9.5 percent drop.
AAIM also ranks departments by DUI arrest rates, which places Itasca on top with 11.48 arrests per officer per year followed by Carol Stream with 5.63 and Rock Island with 5.60.

Marti Belluschi, AAIM board vice president and a crash survivor, said drunken driving trends in recent years have been a mixed bag. Statewide, DUI arrests have been going down, falling to 41,900 in 2010, down from 48,113 in 2008, according to Illinois secretary of state figures. Belluschi hopes the decline means awareness programs are having an impact but said police budget cuts also are likely to have played a role.

Brent Christensen, a Wheaton DUI attorney suggests that money and not public safety concerns is the primary if unspoken motivation behind the leading DUI municipalities. "With respect to DuPage County DUI statistics, the municipalities at the top of the list charge their DUI under local ordinance rather than State Statute," Christensen said.  AAIM stats confirms that other towns like Oak Brook, Downers Grove, Lombard, Bloomingdale, Glendale Heights , Villa Park and Wheaton all set minimum fines unlike towns like Bensenville, Hanover Park, Lisle and Hinsdale, which use the Illinois State Statute on DUIs.

Ambien Can Cause "Sleep Driving"

Kerry Kennedy DUI Arrest Likely Caused by Sleep Driving due to Ambien - Similar to one Successfully defended by Brent Christensen in DuPage County in 2008 

 

Zolpidem (Photo credit: Wikipedia)

 

Kerry Kennedy's DUI arrest in a New York highway crash earlier this month was likely caused by Ambien-induced sleep driving — the same drug responsible for former U.S. Commerce Secretary John Bryson’s crashes in Los Angeles last mont leading to his cabinet resignation.  The details of Kennedy’s crash have all the hallmarks of sleep driving — the bizarre but disclosed side effect which causes users of Ambien to get out of bed and drive their cars while still asleep with no memory of their actions.  It occurred in the early morning, likely just hours after she took the drug.  She continued driving even though she had a flat tire.  She was disoriented.  She remembers nothing of the incident.  And just like in John Bryson’s case, after Kennedy stopped the car at the bottom of an exit ramp, officers found her slumped behind the wheel.

 

Like Bryson, reports on the Kennedy incident now claim a seizure may have caused it.  That’s despite warnings at the top of each Ambien medication guide advising users that taking it “may [cause you] to get up out of bed while not being fully awake and do an activity that you do not know you are doing [including] driving a car (‘sleep-driving’).”  Many users refuse to believe this side effect can happen to them despite thousands of reported incidents in criminal dockets across the country and in the FDA’s Adverse Event Database.

 Ironically, it was her cousin, former Congressman Patrick Kennedy, that first brought public attention to the problem of Ambien-induced sleep driving in 2006 when he crashed his Mustang convertible into a capitol hill barrier at 2 am telling officers he was late for a vote.  Kennedy had gotten out of bed after taking Ambien and an anti-nausea medication. Around the time of Patrick Kennedy’s incident came a class action agains the drug maker complaining of another curious side effect: sleep eating.  Plaintiff’s lawyer Susan Chana Lask cited examples of clients gobbling strange things after partially waking up in the middle of the night — raw eggs, including the shells, and buttered cigarettes.

In the wake of the class action, and more than a dozen officially reported incidents of sleep driving, the FDA required the drug makers to revise the drug’s label.  It now warns the 39 million people who take Ambien that the drug can cause them to eat, have sex or drive without knowing it and with no memory of their conduct.  But it makes no mention of the legal ramifications that users like Kerry Kennedy face if they’re among the unlucky ones to suffer this purportedly rare side effect. (Ambien, made by French drug maker Sanofi, had peak annual revenues of $2.2 billion in 2006, the year before it went, according to IMS Health.)
Defendants in drug-induced legal predicaments like Kennedy have begun invoking a novel legal strategy: the Ambien defense.  Citing the FDA-mandated label, they’ve argued that sleep driving is a side effect not a criminal offense.

Kennedy’s likely to get a fairer shake asserting the Ambien defense than most.  Others defendants have had mixed results.

In some cases, it has worked, saving defendants from serious jail time in cases involving vehicular assault and manslaughter.  In 2008 Brent Christensen, a Wheaton, Illinois dui attorney successfully defended an Illinois woman under similar circumstances.  In that case Christensen's alleged DUI client had driven for miles through multiple jurisdictions, including, Naperville, Lombard, Glen Ellyn, Villa Park and Elmhurst.This week, 45 year old flight attendant Julie Ann Bronson faces sentencing for a vehicular assault charge resulting from a 2009 Ambien-induced sleep driving incident in San Antonio, Texas.  Bronson drank several  glasses of wine during the evening before later taking an Ambien which the drug’s label warns against.  She pled guilty and faced ten years in prison for crashing into a family of three and severely injuring an 18 month old girl.  Bronson says she recalls taking an Ambien before going to bed and then waking up in a holding cell in her pajamas and barefoot.  ”A lady told me I’d assaulted a woman and a child,” Bronson testified.  ”I’d never hit anyone in my life.  It was surreal.  It was like a bad dream.”  The jury believed she didn’t intend to get into her car and in a ruling last month, gave her probation instead.

Bronson isn’t the first to avoid jail following sleep driving related fatalities.  In 2006, Ki Yong O, a 36 year old lawyer from Andover, Mass. killed Anthony Raucci in an Ambien-induced sleep driving crash.  In November 2007, a judge acquitted O of vehicular homicide ruling he couldn’t conclude “beyond a reasonable doubt” the defendant “was voluntarily intoxicated when he operated his motor vehicle.”  Two years later a Fresno, Calif. jury acquitted Donna Neely, 56, of similar charges resulting from a crash that killed Cho Thao Her, a mother of 11 children.
Others have had less success with the Ambien defense.  Josh Shortt, a Loudoun County, Virginia firefighter and cop, was convicted for DUI in 2008 following an Ambien-induced sleep driving crash.  He appealed the conviction — which cost him his law enforcement career — all the way to the U.S. Supreme Court — which declined to hear the appeal in March.

In many cases, like Josh Shortt’s, judges and prosecutors have found the notion of sleep driving inherently implausible despite FDA recognition that it can — and has — happened.  Though the FDA recommended drug makers investigate how and why it happens — no studies have been done.  That may explain why despite the label change, physicians and patients continue to underappreciate the risk of it occurring.  In the DuPage County, Illinois case, DUI Defense lawyer, Brent Christensen was able to convince prosecutors to reduce the charge to simple reckless driving in order to avoid the risk of going to trial on the DUI charge.

Former Lake County Chief Judge Not Guilty of DUI, Guilty of Resisting

A four-year legal fight over DUI charges against Lake County's then-chief judge ended swiftly Monday when he was cleared of drunken driving after a one-day trial.
But David Hall, who stepped down as chief judge after the arrest and retired this month following his diagnosis with Lou Gehrig's disease, was found guilty of resisting arrest in the April 2008 traffic stop.

 

Hall avoided jail, instead being sentenced to 100 hours of community service, 18 months of probation and a $1,000 fine. He could have received a year in jail for the resisting-arrest conviction.
Prosecutors' ability to prove drunken driving was hampered by the fact that the officer who pulled over and pepper-sprayed the judge died a few weeks later. And an appeals court later ruled that a blood sample taken from Hall at a hospital after the traffic stop was mishandled and therefore inadmissible.
During Monday's trial, overseen by a judge from Kane County, the officer who provided backup during the traffic stop, Mark Sosnoski, testified that Hall attempted to roll up his window, ignored an officer's order to exit the vehicle and turn off the ignition on his vehicle.

It would appear that the ex-judge got lucky in two aspects of his DUI arrest.  First the unavailabilty of the arresting officer would have made it difficult for the State's Attorney to ellicit enough testimony regarding the bad driving and the Defendant's state of inebriation.  Second the suppression of the blood tests would have been the key piece of evidence even if the arresting officer had not died.

The Law Offices of Brent M. Christensen has experience in dealing with this type of case and the results are frequently similar.  Officers from the Naperville and Oak Brook police departments have been known to initate (or admit to initiating) DUI arrest too early in these types of resisting cases.  Wheaton DUI Lawyer Brent Christensen would contend that skilled cross examination of the arresting officer at the summary suspension hearing stage can often "trap" police officers into admissions that make it impossible for prosecutors to win these types of cases.

NFL Player Charged with DUI on Army Post

Drving under the influence of alcohol is the single most common criminal offense charged nation-wide.
The days of "getting out" of a DUI arrest because of celebrity status are also a thing of the past.  Take for example this incident reported by the Associated Press involving Tennessee Titans player Kenny Britt:

"Tennessee Titan wide receiver Kenny Britt was charged with driving under the influence early Friday as he attempted to pass through a security gate at the Fort Campbell Army installation on the Tennessee-Kentucky state line, military officials said.

Britt was attempting to drive onto the post at Gate 4, which is on the Kentucky side of the installation, and his driving prompted military police to administer a field sobriety test, which showed indicators of intoxication, said Bob Jenkins, a spokesman for the post.

He refused to take a Breathalyzer test and was charged with DUI and implied consent and taken into custody around 3:30 a.m., Jenkins said.

He was later escorted by military police to the gate and released. Jenkins had no information about who was in the vehicle with him."

Being arrested by Military Police for a non-military member poses some interesting legal and practical issues for the prosecution.  Presumably the trial court would be in State Court.  But the State prosecutor would have a hard time successfully subponaeing the arresting MPs if they are transferred to other duty.

If Britt were in the military he would have been subject to the Uniform Code of Military Justice UCMJ instead of State Law.  In such a case he would be tried by a court martial.  The Law Offices of Brent M. Christensen has represented many miltary members who've been charged with DUI when on leave from the military.  These cases can have a devasting effect on the serviceman's military career.

Brent Christensen is a Wheaton DUI lawyer concentrating exclusively on representing individuals charged with DUI anywhere in DuPage County, including Naperville, Carol Stream, Elmhurst, Lombard, and Villa Park.

DUI Case Law Update: Appellate Court Reverses DUI Conviction based on insufficient blood sample evidence

An inference is a factual conclusion that can rationally be drawn by considering other facts. Thus, an inference is merely a deduction that the fact finder may draw in its discretion, but is not required to draw as a matter of law." Where evidence is presented and such evidence is capable of producing conflicting inferences, it is best left to the trier of fact for proper resolution.  The Administrative Code provides a blood serum or blood plasma alcohol concentration should be "divided by 1.18 to obtain a whole blood equivalent." 20 Ill. Adm. Code 1286.40 (2012).  Alcohol concentration shall mean either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.

This is what the Illinois Appellate Court for the 3rd District held recently when it reversed the Will County Circuit Court in a DUI case involving injury.  The case points up many issues, not the least of which is the importance for DUI defense lawyers not to stipulate to certain facts.

After a bench trial, the court found defendant, Timothy Harmon, guilty of two counts of driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(1), (a)(2) (West 2010)) and improper lane usage  (625 ILCS 5/11-709 (West 2010)), and imposed a sentence of 24 months of conditional discharge. On appeal, defendant argues that the trial court erred by concluding that "221" on his hospital blood test  results meant 0.221 grams of alcohol per 100 milliliters of blood. See 625 ILCS 5/11-501.2(a)(5) (West 2010) (stating that alcohol concentration is measured in grams per 100 milliliters of blood). So finding, the Third District reversed the trial court's ruling.


The Law Offices of Brent M. Christensen, a Wheaton DUI defense firm that handles many cases originating in Naperville (which is located partly in Will County) is a strict adherent to the tactics used by the attorney in this case.


Here is the complete Appellate Court opinion:



2012 IL App (3d) 110297
Opinion filed July 19, 2012
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2012
THE PEOPLE OF THE STATE OF
ILLINOIS,
Plaintiff-Appellee,
v.
TIMOTHY HARMON,
Defendant-Appellant.
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)
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)
)
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Appeal from the Circuit Court
of the 12th Judicial Circuit,
Will County, Illinois,
Appeal No. 3-11-0297
Circuit No. 10-DT-863
Honorable
Domenica Osterberger,
Judge, Presiding.
JUSTICE WRIGHT delivered the judgment of the court, with opinion.
Justices McDade and O'Brien concurred in the judgment and opinion.
OPINION
¶ 1 After a bench trial, the court found defendant, Timothy Harmon, guilty of two counts of
driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(1), (a)(2) (West 2010)) and
improper lane usage (625 ILCS 5/11-709 (West 2010)), and imposed a sentence of 24 months of
conditional discharge. On appeal, defendant argues that the trial court erred by concluding that
"221" on his hospital blood test results meant 0.221 grams of alcohol per 100 milliliters of blood.
See 625 ILCS 5/11-501.2(a)(5) (West 2010) (stating that alcohol concentration is measured in
grams per 100 milliliters of blood). We reverse.
¶ 2 FACTS
¶ 3 On May 22, 2010, defendant was involved in a single-vehicle accident and was
transported to Adventist Bolingbrook Hospital (Adventist) for emergency medical treatment.
The State charged defendant with driving a motor vehicle while his blood alcohol level was
above 0.08 (625 ILCS 5/11-501(a)(1) (West 2010)), driving a motor vehicle while under the
influence of alcohol (625 ILCS 5/11-501(a)(2) (West 2010)), improper lane usage (625 ILCS
5/11-709 (West 2010)), and driving too fast for conditions (625 ILCS 5/11-601(a) (West 2010)).
¶ 4 At trial, Rosemary Brockmeier testified that on the day of defendant's accident, she was
employed as a nurse at Adventist. She stated that defendant arrived at the hospital for emergency
treatment and his blood was tested in the ordinary course of emergency treatment. The following
exchange then occurred between the prosecutor and Brockmeier:
"Q. [Assistant State's Attorney]: What [was] the blood alcohol content indicated
of record of the defendant's blood?
A. Um, 221 on admission.
Q. And do you know whether that means whole blood or serum?
A. This is serum."
In addition, the court allowed the State to admit defendant's medical records into evidence which
indicated defendant's ethanol intoxication level was "221 on admission."
¶ 5 Following the conclusion of the State's evidence, defendant moved for a directed verdict
on the grounds the State had not produced any evidence converting his blood serum level to
whole blood. Defendant also argued Brockmeier did not explain what "221" meant on
defendant's admitting orders.
2
¶ 6 In response, the prosecutor asked to reopen proofs so the trial court could take judicial
notice of title 20, section 1286.40, of the Illinois Administrative Code, which divides the blood
serum number by 1.18 to obtain the whole blood equivalent without reference to any unit of
measurement. 20 Ill. Adm. Code 1286.40 (2012). The State also requested permission to recall
Brockmeier as a witness, "just so there [was] no confusion" with regard to defendant's blood
alcohol level.
¶ 7 The court agreed to take judicial notice of the Administrative Code, but denied the State's
request to recall Brockmeier as a witness after the State rested. The trial court granted a directed
verdict in favor of defendant with regard to driving too fast for conditions, but denied defendant's
motion on the DUI counts and improper lane usage.
¶ 8 After closing arguments, the trial court took the matter under advisement, and rendered a
decision on February 3, 2011. In its oral order, the court stated "the real issue I have with this
case and why I took it under advisement is whether there is sufficient evidence for me to draw a
reasonable inference that the number 221 that is reflected in the ER record and that was testified
to by the nurse means point 221 grams per milliliter of blood." The trial court concluded that it
could draw the reasonable inference from the evidence that the number 221 meant 0.221 and,
after applying the conversion factor, found that defendant's blood alcohol level was 0.187. Based
on this finding, the court entered a conviction under section 11-501(a)(1) of the Illinois Vehicle
Code (Code). After finding that defendant's blood alcohol level was above 0.08, the court
applied the presumptions pursuant to section 11-501.2(b)(3) of the Code and also convicted
defendant of DUI of a violation of section 11-501(a)(2) of the Code. See 625 ILCS 5/11-
501.2(b)(3) (West 2010). Defendant appeals.
3
¶ 9 ANALYSIS
¶ 10 On appeal, defendant argues there was insufficient evidence for the trial court to infer that
"221 on admission" meant a blood serum level of 0.221 comparing grams of alcohol per 100
milliliters. The State contends the trial court drew a permissible inference based on the evidence
presented during trial.
¶ 11 When faced with a challenge to the sufficiency of the evidence, the reviewing court must
view the evidence in the light most favorable to the prosecution and determine whether any
rational trier of fact could have found the elements of the crime proven beyond a reasonable
doubt. People v. Collins, 106 Ill. 2d 237 (1985). The trier of fact is responsible for determining
witness credibility, the weight to be given to their testimony, and the reasonable inferences to be
drawn from the evidence. People v. Jimerson, 127 Ill. 2d 12 (1989).
¶ 12 The case law provides that "[a]n inference is a factual conclusion that can rationally be
drawn by considering other facts. Thus, an inference is merely a deduction that the fact finder
may draw in its discretion, but is not required to draw as a matter of law." People v. Funches,
212 Ill. 2d 334, 340 (2004). In addition, " '[w]here evidence is presented and such evidence is
capable of producing conflicting inferences, it is best left to the trier of fact for proper resolution.'
" (Emphasis added.) People v. Saxon, 374 Ill. App. 3d 409, 416 (2007) (quoting People v.
McDonald, 168 Ill. 2d 420, 447 (1995)).
¶ 13 In the event that the State wishes for the court to convert a blood serum alcohol level to a
whole blood alcohol level, the Administrative Code provides a blood serum or blood plasma
alcohol concentration should be "divided by 1.18 to obtain a whole blood equivalent." 20 Ill.
Adm. Code 1286.40 (2012). The Code also provides, for purposes of the Code, "[a]lcohol
4
concentration shall mean either grams of alcohol per 100 milliliters of blood or grams of alcohol
per 210 liters of breath." 625 ILCS 5/11-501.2(a)(5) (West 2010).
¶ 14 While the nurse's testimony in this case established defendant blood serum level was "221
on admission," her testimony did not indicate the hospital's base unit of measurement for the
amount of "221." Without any testimony regarding the hospital's unit of measurement
underlying the expressed value of "221," the court presumed "221," as measured by the hospital,
required the insertion of a decimal point before the number "221" and "mean[t] point 221 grams
per milliliter of blood."
¶ 15 The trial court relied on the decision of People v. Kotecki, 279 Ill. App. 3d 1006 (1996).
However, in Kotecki, the hospital records at issue indicated a precise unit of measurement. In
that case, the hospital records included a notation that the number "'153'" was based on "'UNITS'"
identified as "'MG/DL.'" Id. at 1013. Thus, the trial court in Kotecki had evidence that the
measurement was "'MG/DL'" and then reasonably inferred "'MG/DL'" meant milligrams per
deciliter. The reviewing court allowed the court to insert a decimal point to convert the
expressed ratio to milliliters and held the trial judge did not "arbitrarily" insert a decimal point,
but instead "examined the document in evidence and made a reasonable inference from that
document." (Emphasis added.) Id.
¶ 16 Unlike the facts in Kotecki, the State, in this case, did not present any evidence
concerning the unit of measurement employed by the hospital when calculating defendant's level
of alcohol present in his blood serum. Here, Brockmeier did not inform the judge regarding the
unit of measurement for the blood serum level of "221" and the hospital record itself does not
identify the measurement unit the hospital employed. An inference is drawn by first considering
5
other facts and evidence presented at trial. See, e.g., Saxon, 374 Ill. App. 3d 409. Without this
evidence, the trial judge's inference regarding the unit of measurement employed by the hospital
was predicated on "guess, speculation, or conjecture." People v. Jones, 174 Ill. 2d 427, 430
(1996) (holding that, while it was not difficult to conclude that three untested packets contained
cocaine, such a determination had to be based on evidence and not speculation).
¶ 17 When the State's evidence is incomplete, the trier of fact may not fill in the gaps in the
evidence to support a conviction. Even examining all of the evidence in the light most favorable
to the prosecution, we conclude the State's evidence did not allow the court to infer that "221"
measured the ratio of grams of alcohol per 100 milliliters.
¶ 18 We agree the State did not present sufficient evidence concerning defendant's blood
alcohol level to support the court's finding that defendant was in violation of section 11-501(a)(1)
of the Code. In addition, because the trial court applied that statutory presumption to convict
defendant of a DUI under section 11-501(a)(2), this conviction must be vacated as well. People
v. Green, 294 Ill. App. 3d 139 (1997) (statutory presumption only applies if there is evidence
presented of whole blood alcohol concentration). Therefore, we reverse defendant's convictions
for DUI.
¶ 19 CONCLUSION
¶ 20 For the foregoing reasons, the judgment of the circuit court of Will County is reversed.
¶ 21 Reversed.

The Problems with Retrograde Extrapolation of Blood Alcohol Levels

The Law Offices of Brent M. Christensen is pleased to present this insightful treatise relevant to DUI cases.

If a driver’s blood-alcohol concentration (BAC) is below the legal limit when the driver gives a breath or blood sample, this fact will not stop the prosecution from trying to obtain a DWI conviction. At trial, the state may attempt to use retrograde extrapolation to convince the jury that the BAC exceeded the legal limit earlier when the police stopped the driver on the highway. But retrograde extrapolation is an unreliable tool.
According to the concept of retrograde extrapolation, a blood-alcohol concentration derived from the analysis of a subject’s breath or blood sample at a particular test time¹ can be extrapolated back to the supposedly higher BAC existing at an earlier incident time. This is accomplished by adding to the BAC at test time the product of the hourly rate of alcohol elimination from blood (commonly termed the β value, as per Widmark²) and the number of hours elapsed between incident and test times. This process is expressed mathematically by Equation 1 (eq 1).

Equation 1

BAC_{Test Time} + Elapsed Hours x β = BAC_{Incident Time}­
The application of this equation can be demonstrated via the following example. An individual is characterized by a test BAC of 0.07 percent at 6:00 a.m., and assume that his hourly rate of alcohol elimination is 0.015 percent/hour (hr) — an average β³ often used by those who employ retrograde extrapolation — then his BAC at 3:30 a.m., 2.5 hours earlier, would be estimated to be 0.10 percent. This BAC would be obtained by using eq 1 to perform the calculation shown in Equation 2. The result initially obtained and not shown, namely 0.1075 percent, would be truncated to 0.10 percent, as indicated, in accord with the established law enforcement practice of truncating BACs to two decimal places by eliminating all decimal places beyond the second without rounding.⁴

Equation 2

0.07% + 2.5 hr x ^0.015%⁄_{1 hr} = 0.10%
The apparent simplicity of retrograde extrapolation renders it an attractive tool among proponents of this methodology. The examples profiled in the next section, stemming from newspaper coverage of various DWI cases, reflect this reality. The re-examination of these examples in a forthcoming section, however, within the context of the arguments offered in this article concerning the drawbacks of retrograde extrapolation, provides an alternative and scientifically reliable perspective on the conclusions stemming from law enforcement personnel that are offered in each of the examples.

Documented Cases Involving Retrograde Extrapolation

Brooklyn (New York) District Attorney Charles Hynes made the following statement in 2000 concerning a DWI case: “Reaching a drunken state between the time of the car stop and … testing for alcohol when no additional alcohol is consumed is a metabolic impossibility.”⁵ Implicit in that statement is the assumption by Hynes that BAC cannot increase between the time of the car stop (the incident time) and the time of the test. Rather, it appears that, according to him, the BAC must decrease, so that the BAC at the time of the car stop must necessarily be higher than at the time of testing.
In 2002, law enforcement authorities charged nationally recognized public television journalist and author Bill Moyers with DWI in Vermont. A breath test administered at the Shaftsbury Police Barracks where officers took Moyers after he failed a roadside breath test indicated a nontruncated BAC of 0.079 percent.⁶ Although this test result was below the legal limit of 0.08 percent in Vermont, Lt. Steve Poirot, the barracks commander, said that the BAC for Moyers was adjusted upward “to take into account alcohol that would have left Moyers’ system between the arrest and the test [conducted at the barracks].”
Law enforcement officers found that a driver involved in a Brooklyn, N.Y., accident in 2005 that resulted in a fatality had a BAC of 0.06 percent approximately 2.5 hours after the accident occurred. The report of this fatality indicated that, although the arrested driver had a BAC below New York’s legal limit of 0.08 percent at Brooklyn’s Lutheran Medical Center when he was tested, “Brooklyn prosecutors believe that [the driver’s BAC] was much higher at the time of the accident.”⁷
In 2009, journalist Michael Daly⁸ described a case involving a fatality in which authorities found that the arrested driver, suspected of DWI and tested more than seven hours after the accident occurred, had no BAC, despite indications that he had been ingesting alcohol prior to the accident. According to Daly, “Experts say that even in those circumstances there would still be enough of a trace [of alcohol] for ‘retrograde extrapolation.’ The rate of dissipation is used to work backward from the test results, deducing what the level must have been at the time of the accident, [in accord with the application of eq 1].”
These four incidents are a mere sampling of the “retrograde extrapolation” mindset that typically exists in law enforcement concerning many DWI cases. Given that this issue is likely to continue to surface, revisiting the topic and addressing its inherent flaws are warranted.

The Flawed Basis of Retrograde Extrapolation

The schematic diagram appearing in Figure 1 represents an ideal blood-alcohol or breath-alcohol curve (hereinafter termed “BAC profile” or “BrAC profile”) adapted from the classic research of Widmark.⁹ The various phases of alcohol metabolism are shown in the figure. It must be stressed, however, that actual BAC or BrAC profiles can deviate significantly from the profile in Figure 1,¹⁰ as is emphasized below. In fact, the delineations depicted in Figure 1 are not always as clear-cut as they appear to be, so that, for example, the plateau and diffusion-equilibration phases in an authentic profile are not necessarily distinguishable. Nevertheless, this figure serves as a useful instructional aid that facilitates the understanding of the flawed basis of retrograde extrapolation.
Within this context, therefore, the focus is on the elimination phase — also termed the postabsorptive state¹¹ — following the equilibration of alcohol in the body. In this regard, Dubowski¹² has indicated that the “peak” region of a BAC/BrAC profile, which would encompass the “plateau” in Figure 1, “often marks … the changeover between the rising and falling [BACs or BrACs], reflecting the absorption … and elimination … phases … [respectively].” As indicated in Figure 1, the elimination phase in the ideal situation is linear, and it must necessarily be so if eq 1 is to apply. That is, the mathematical requirement for the application of eq 1 to a calculation involving a retrograde extrapolation in a given case is that a straight line denotes the graphical representation of the elimination phase associated with that case.
In reality, the shape of the BAC/BrAC profile of a subject charged with DWI is typically unknown, so that where the subject’s BAC — or BrAC in a breath-alcohol analysis, as per note 10 — lies on the subject’s particular profile at test time is also unknown. Consequently, the fundamental assumption, that a given test subject is in the postabsorptive state at test time and that the subject’s BAC/BrAC profile in that state exhibits linearity, has no basis in fact. In this regard, Dubowski¹³ has referred to the “infeasibility of retrograde extrapolation” and has offered three key reasons in support of his position: “(1) lack of knowledge, usually, about the timing of the alcohol concentration peak and absorption-postabsorption status; (2) ignorance about the mathematical characteristics (e.g., linear, pseudolinear, exponential) and the mean rate of change of the individual’s blood- or breath-alcohol elimination [profile]; and (3) unpredictable irregularities of the [profile], especially short fluctuations from the best-fit trend line of the blood- or breath-alcohol [profile].”
More recently, Jones¹⁴ characterized retrograde extrapolation as “a dubious practice, owing to the many variables and unknowns involved.” He added that, “In a typical impaired driving trial, only a single measurement¹⁵ of BAC or BrAC is usually available, making it very difficult to engage in retrograde calculations with sufficient certainty for a criminal prosecution.” Jones’ position, coupled with Dubowski’s, as described above, reinforces the argument put forth earlier by Martin et al.¹⁶ that “back extrapolation of venous blood alcohol levels, based on a single known concentration, can lead to estimates bordering on wild guesses.”  In a recent case, DuPage DUI attorney Brent Christensen successfully challenged the Cook County State's Attorneys attempt to use retrograde extrapolation in a DUI case in which Christensen's client passed two of three field sobriety tests and submitted a breath test with a result of .079.

Exemplification of Flawed Retrograde Extrapolations

The BAC/BrAC profile of a DWI arrestee, based on that individual’s drinking pattern in the case involved, is unknown when law enforcement personnel makes the relevant concentration measurement for that arrestee as indicated above.¹⁷ Therefore, the only reliable assessment of a BAC/BrAC profile, within the context of retrograde extrapolation, must necessarily reflect published research. In this regard, and based on the documented BrAC profiles presented by Watkins and Adler¹⁸ — who studied nine subjects (six males, three females) using two separate protocols, alcohol consumption after a large meal and after an approximate six-hour fast — Fitzgerald and Labianca¹⁹ have demonstrated that a prediction of a prior BrAC derived from a reported BrAC using retrograde extrapolation is unreliable.
One example, among many, derived from the work of these authors that supports this conclusion involves the BrAC profile of a “full stomach” female subject (Figure 40M of the Fitzgerald/Labianca work²⁰) that indicates an estimated nontruncated test BrAC value of 0.065 g/210 L 2.7 hours after drinking. The predicted BrAC, two hours earlier (i.e., at 0.7 hour, or 42 minutes, after drinking), would be a nontruncated 0.095 g/210 L. This prediction is obtained from the application of eq 1 and the use²¹ of a β value of 0.015 g/210 L/hr that would be equivalent to 0.015 percent/hour if a BAC calculation were involved (0.065 g/210 L + 2 hr x 0.015 g/210 L/hr = 0.095 g/210 L). The actual, “two-hour-earlier” BrAC estimated from the Figure 40M profile is a nontruncated 0.065 g/210 L. Note that this is the same BrAC derived from the profile at 2.7 hours after drinking, as noted above.
That there is no change in BrAC during the two-hour period under consideration is a consequence of the fact that the 0.7-hour BrAC occurs before the peak BrAC is achieved, so that the absorption phase is apparently still in place. The 2.7-hour BrAC occurs at a point in the profile beyond the peak where the BrAC has been changing slowly, apparently due to the presence of food in the subject’s stomach. So the predicted BrAC at 0.7 hour after drinking, which truncates to 0.09 g/210 L, is obviously higher than the actual BrAC, which truncates to 0.06 g/210 L.
The analysis of Fitzgerald and Labianca²² is consistent with Dubowski’s conclusion²³ that retrograde extrapolation is “infeasible.” A relevant example in this regard from Dubowski’s work²⁴ — one of many the interested reader can personally explore using the BrAC profiles presented in that work — involves Figure 2D, one of the six BrAC profiles reported by Dubowski involving alcohol consumption after a four-hour fast. He used BrAC values that employ the concentration unit, milligrams (mg) of alcohol per 230 liters (L) of breath (mg/230 L). This unit can be converted into the equivalent unit of “g/230 L” by dividing the former unit by 1000, since 1000 mg equals 1 g. Dubowski’s use of this concentration unit is based on a blood-alcohol to breath-alcohol ratio (BBR)²⁵ of 2300:1, essentially the mean, or average, postabsorptive BBR reported by Dubowski.²⁶ To convert any of Dubowski’s g/230 L BrAC values into corresponding g/210 L BrAC values — the latter based on the standard 2100:1 BBR²⁷ — the former BrAC values would simply be multiplied by the fraction, 2100/2300, to generate the latter BrAC values.
Given the preceding stipulation, one can estimate from Dubowski’s Figure 2D, referred to above, a nontruncated BrAC of 0.1068 g/210 L, measured 2.5 hours after the commencement of alcohol consumption and prior to the occurrence of the peak BrAC and, therefore, during the absorption phase. If one wanted to retrograde extrapolate this BrAC to the supposedly existing BrAC 1.5 hours earlier, a point in time still characterized by the absorption phase, one would apply eq 1 to obtain a predicted, nontruncated BrAC of 0.1293 g/210 L (0.1068 g/210 L + 1.5 hr x 0.015 g/210 L/hr = 0.1293 g/210L). The actual BrAC 1.5 hours earlier, however, as estimated from Dubowski’s Figure 2D, is a nontruncated 0.0639 g/210 L. In effect, then, the predicted, truncated BrAC of 0.12 g/210 L is significantly higher than the actual, truncated BrAC of 0.06 g/210 L.
Dubowski²⁸ also emphasizes the “fluctuations phenomenon” that characterizes his reported BrAC profiles. That is, according to him, “It is evident from these rather typical [BrAC profiles] that breath-alcohol analysis results, even under highly controlled conditions, can and do rapidly oscillate in short time periods above or below any given concentration.” In fact, one of the profiles (Figure 2F) exhibits “positive and negative spiking as great as 0.030 g/230 L in less than 10 [minutes].” This concentration is equivalent to 0.027 g/210 L — obtained via multiplication of 0.030 g/230 L by 2100/2300, as noted previously — which, in turn, truncates to 0.02 g/210L. Such “spiking” is particularly revealing when considered within the context of an example involving, for instance, a BrAC of 0.07 g/210 L at a particular time such as 8:00 p.m. Thus, 10 minutes earlier, at 7:50 p.m., the BrAC could have been 0.09 g/210 L; 10 minutes later, at 8:10 p.m., it could have been 0.05 g/210 L; and at 8:20 p.m., it could have returned to 0.07 g/210 L. Obviously, such fluctuations — which also characterize the work of Watkins and Adler²⁹ that was relied upon by Fitzgerald and Labianca,³⁰ as described previously — constitute a potentially disturbing feature of any attempt to use retrograde extrapolation based on a reported BAC or BrAC derived from forensic breath-alcohol analysis.
Moreover, Dubowski³¹ stresses that the “fluctuations phenomena” described above are not restricted to breath-alcohol analysis. In fact, he observed similar patterns in BAC profiles, as demonstrated by “the very close correlation of numerous separately measured simultaneous [BACs] and [BrACs] in the course of the experiments that yielded the [BrAC profiles]” he reported.³²

Re-examination of Previously Described Documented Cases

In view of the problems concerning retrograde extrapolation, a brief review of the four documented cases presented previously is warranted. Consider first the comment by Brooklyn District Attorney Charles Hynes in 2000 characterizing an increase in BAC between incident and testing times as a “metabolic impossibility.”³³ The subject in this case could very well have been in the absorptive state of alcohol metabolism at incident time, so that by test time the BAC could have risen from an inconsequential level to a level reflecting intoxication.
Consistent with this argument is the work of Jones et al.,³⁴ who found the rise in BAC to average 0.10 percent per hour on an empty stomach (0.10 g/210 L, based on a 2100:1 BBR)³⁵ and the work of Simpson,³⁶ who, relying on Dubowski’s data,³⁷ determined an average rise in BAC of about 0.15 percent per hour (0.15 g/210 L). Rates of alcohol absorption on a full stomach, on the other hand, tend to be lower, but are, nevertheless, significant. In this regard, Labianca’s analysis³⁸ of the data of Jones and Neri,³⁹ derived from their study of subjects who ingested mixed drinks with a meal, revealed an absorption rate averaging about 0.05 percent per hour.
Also noteworthy concerning an individual’s absorption status is Dubowski’s relevant commentary.⁴⁰ He emphasized that “it is not possible to establish whether an individual is in the absorption or elimination [postabsorptive] phase … from the results of two consecutive blood- or breath-alcohol measurements, however timed.”⁴¹ In terms of specific time frames, Baselt⁴² has reported that, for fasting subjects, the time-to-peak BAC typically ranges from 0.5 to 2.0 hours, with an average of 0.75 to 1.35 hours, depending on alcohol dose and time of last meal. For nonfasting subjects, on the other hand, the range is 1.0 to 6.0 hours, and the average is 1.06 to 2.12 hours. Furthermore, Dubowski⁴³ has said that, in addition to the factor of food consumption, the rate of alcohol absorption is dependent on other factors. These factors include the type and concentration of alcoholic beverage ingested, and a “multitude of other physical, biological, psychological, and time factors that combine with the individual’s sex, bodyweight and body water, and related habitus characteristics as well as offsetting metabolic disposition to determine the ultimate peak blood-alcohol concentration [or BrAC] and other characteristics of the time course of the blood-alcohol concentration [or BrAC].”
The second and third cases previously profiled, like the first case, could realistically have involved lower incident time BACs than law enforcement personnel claimed. In the Bill Moyers case,⁴⁴ the reported, nontruncated BAC of 0.079 percent could very well have been significantly lower at the time of the arrest, and not higher, as barracks commander Lt. Poirot argued. Between the time of the arrest and the time of the breath test at the police barracks, Moyers could have been in the absorptive state of alcohol metabolism, so that his BAC would have been rising.
In the third case⁴⁵ involving a reported BAC of 0.06 percent 2.5 hours after the accident occurred, there is no way to verify prosecutorial claims that the driver’s BAC was substantially higher at the time of the accident. Once again, the assumption was made that the driver was in the postabsorptive state at test time, that he was still postabsorptive 2.5 hours earlier, and that his particular BAC profile was linear in the postabsorptive state, so that a retrograde extrapolation to a higher BAC could have been conducted. On the other hand, the driver could have been absorbing alcohol 2.5 hours earlier, and his BAC at that time could have been lower than 0.06 percent. Consequently, once again, the uncertainty stemming from lack of knowledge of the driver’s BAC profile renders any conclusion regarding a prior BAC untenable.
The fourth and final case, as described by journalist Daly,⁴⁶ is troubling because he says that, according to “experts,” even a “trace” of alcohol in the blood would be sufficient to facilitate a retrograde extrapolation. There are two key issues to consider concerning this argument. First, what is meant by a “trace” of alcohol? Dubowski⁴⁷ has stated, in this regard, that “putative BAC results of less than [0.01 percent] should not be reported numerically, but simply designated as negative for alcohol.” Second, even if the BAC exceeds this lower limit threshold of 0.01 percent, lack of knowledge concerning the driver’s BAC profile necessarily casts serious doubt on any attempted retrograde extrapolation of a low BAC to a higher incident time BAC.

Conclusion

The underlying uncertainty characterizing retrograde extrapolation renders this process an unreliable tool in the DWI arena. The conclusions of Dubowki are unequivocally applicable: “[n]o forensically valid forward or backward extrapolation of blood- or breath-alcohol concentrations is ordinarily possible in a given subject and occasion solely on the basis of time and individual analysis results … [and, furthermore,] extrapolation of a later alcohol test result to the time of the alleged offense is always of uncertain validity and, therefore, forensically unacceptable.”