Assumptions & BAC Numbers

Assumptions are dangerous

I get DWI phone calls all the time asking me about the breathalyzer, and what "the number" really means. The BAC (Blood Alcohol Concentration) number that gets spit out of "the machine" is merely a number in space until we have context. Context refers to the circumstances regarding the individual tested.

There are alot of assumptions that need to be made to say that the BAC number is an accurate measurement of the person's level of intoxication at the time of vehicle operation. Let us begin...

1. Assuming that the accused did not burp, belch, or regurgitate any stomach contents?
2. Assuming that the accused was "observed" for 20 minutes prior to testing to ensure this?
3. Assuming that the accused BAC was falling, so a lower rating at the station than when driving?
4. Assuming that the accused is "normal"... 98.6, BP of 120/80, no infirmities, diseases, meds?
5. Assuming a "normal" metabolism for an average individual because the machine is set at a ratio (via software) of 2100 ml of breath to 1 ml of blood alcohol?
6. Assuming an accurate breath sample from the deep lung tissues, no hyper ventilation or hypoventilation?
7. Assuming an accurate and reliable machine that has been checked every six months?
8. Assuming an accurate machine temperature?
9. Assuming no RFI (Radio Frequency Interference) , ie. police walkie talkies in the room?
10. Assuming a currently licensed BTO (Breath Test Operator)?
11. Assuming that the number is consistent with what the accused ate that day and drank?
12. Assuming that the number is consistent with the drinking pattern, quantity and quality of alcohol, and times consumed?

So what can a "good" lawyer do? A good lawyer can ask questions. A prepared lawyer can discover, uncover, and investigate the facts, and then dissect them. Does everything jive?
Does the story seem plausible? What needs to be challenged? There are many stages, and parts to a DWI case, and you never know when you begin to dig what can be found.

Our job as defense attorneys is to challenge the government's case, to put it to the test. Into the crucible of fire, to remove any impurities, and to allow stand only that which is irrefutable.

Too often we ASSUME too much, and as I learned as a boy growing up in the 70s we make an ASS of U and ME.