How can a Lawyer use DMV and State/Prosecution Publications in a Rising BAC Case?

If it is not, DMV may not be able suspend after a DUI.

"Were you driving a motor vehicle when you had 0.08% or more by weight of alcohol in your blood?" is the stated issue on a pink DMV Order of Suspension/Temporary License.

Or as stated by your attorney to the San Diego California DMV hearing officer who is trying to take your license - what was your true BAC at the time of driving?

What is going on here? Beer or wine must first absorb your body. Your alcohol or BAC level rises up until the booze is absorbed after drinking ends.

When your body continues to absorb booze as you drive, your alcohol level continues to increase or "rise." You were tested a while after driving.

If your alcohol level was increasing during your drive, then your alcohol level reported at the time of the test is higher than your real BAC at the time of driving.

If you are "rising" - with a .11% BAC record – you really had a lower level at the time of driving.

Your lower level at the time of driving takes into account what and when you were drinking – and your last drink - when viewed at the time you were stopped driving by the DUI police.

Your decreased level at the time of driving further hinges on your weight.

California’s DMV presides over DUI administrative hearings. It also publishes technical charts: "Find your weight chart. Then, look for the total number of drinks you have had and compare that to the time shown." The white, gray and black boxes are important to look at. The charts are divided according to your weight.

Your alcohol level can change as follows:

.01%-.04% per one hour, to

.05%–.07% per next hour, to

.08% or higher per next hour.

What do California DMV's BAC charts then mean?

Your .08% test one hour after your driving means your BAC was .07%, .06% or .05% at the time of driving.

Your .08% test two hours after means your BAC was .04%, .03%, .02% or .01% at the time of driving.

Your .11% test in second hour means your BAC was .07% at the time of driving.

Your .11% test in third hour means your BAC was .04% at the time of driving.

So what your attorney do at the DMV. Well, DMV must take official notice of any “generally accepted technical or scientific matter.”*

Note the following generally accepted technical matter and summarized scientific evidence consisting primarily of Prosecutorial (Law Enforcement) scientific literature and independent scientific studies & writings by Dr. Dubowski and AW Jones, highly-acclaimed scientific experts:

1. DUI Law Enforcement Strategies: Law Enforcement Officials on Administering Field Sobriety Tests, Interpreting Results, and Preparing for Court Testimony (Inside the Minds) [ASPATORE Books] "The Essential of DUI Assessment and Testing":

“In most cases, alcohol is completely absorbed within one to one-and-one-half hours; however, in some case it may require almost three hours for total absorption.”

2. DEPARTMENT OF MOTOR VEHICLE ADMINISTRATIVE HEARING OFFICER BLOOD ALCOHOL TRAINING

Taught By Fred Tulleners & Craig Anderson, Department of Justice Bureau of Forensic Services:

“As a general rule only, complete absorption of a single alcoholic beverage is usually accomplished in from forty-five minutes to an hour, with an empty stomach.” (page 5-5)

3. ABSORPTION, DISTRIBUTION AND ELIMINATION OF ALCOHOL: HIGHWAY SAFETY ASPECTS

by Kurt M. Dubowski, Ph.D.:

“…alcohol absorption is not always complete within 60 to 90 min, as often claimed.” (Journal of Studies on Alcohol, Supplement, page 106)

Dr. Dubowski found that elapsed time from end of alcohol intake to peak blood alcohol concentration varying from 14 to 138 (2hrs. 18 min) minutes, a nearly 10-fold variation.

4. "Food-Induced Lowering of Blood-Ethanol Profiles and Increased Rate of Elimination Immediately After a Meal"

by A. W. Jones:

“Consumption of alcohol with food can increase alcohol clearance by 1-2 hours, and increase the rate of alcohol metabolism by between 36% and 50%, as compared to consumption on an empty stomach.”

[ A. W. Jones, Food-Induced Lowering of Blood-Ethanol Profiles and Increased Rate of Elimination Immediately After a Meal , Journal of Forensic Sciences 1994 July; 39(4):1084-1093, p. 1084; see also ATTACKING AND DEFENDING DRUNK DRIVING TESTS by Donald J. Bartell, Mary Catherine McMurray & Anne D. ImObersteg, page 2-7]

5. "Interindividual Variations in the Disposition and Metabolism of Ethanol in Healthy Men"

by A. W. Jones:

“In one study, peak alcohol concentration ranged from 30 to 120 minutes…”

“…25 of the subjects took between 60 and 120 minutes to reach peak absorption.”

(A.W. Jones, "Interindividual Variations in the Disposition and Metabolism of Ethanol in Healthy Men”, Alcohol 1984 Sept-Oct;1(5):385-91, at p. 385.)

6. Yahoo Map, MAPQUEST or Google Map details time and distance between the DUI police stop location and the place where alcohol was reportedly consumed. These Internet maps are therefore generally accepted technical evidence.

The DUI arrest report is received by California DMV into evidence. Included are the exact location of the DUI arrest and your statements as to you had been drinking alcohol, if any.

California DMV serves the DUI Lawyer a REQUEST FOR DISCOVERY "...including any statements, writings…or things which are relevant to this proceeding.”

Your rights must be observed:

1. Right to adequately prepare and present evidence at the hearing [California Government Code 11507.6].

2. Due process right to present evidence [Govt Code 11425.10].

3. Due process right to rebut evidence [Govt Code 11425.10].

* California Government Code Section 11515 requires the California Department of Motor Vehicles to take “official notice…of any generally accepted technical or scientific matter within the agency’s special field, and of any fact which may be judicially noticed by the courts of this state.”

California Evidence Code Section 452(g) permits the Department to further take official notice of facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that cannot reasonably be the subject of dispute. There can be no dispute as to the respective locations’ path of travel.

California Evidence Code Section 452(h) further permits the Department to take official notice of facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of indisputable accuracy. An Internet map is obviously subject to easy, uniform verification. This immediate determination of accuracy can be done by the Department.

Hearsay evidence may be solely relied upon in a decision in favor of the driver. California Government Code Section 11513(c) does not expressly limit the manner in which a licensee’s evidence may be considered. [Robertson v. Zolin (1996) 44 Cal.App.4th 147, 151]

DMV chart (California state technical publication), law enforcement absorption matters (prosecution publication), DMV scientific absorption excerpt from book (Department of Justice publication), generally accepted expert treatises (scientific studies), and Google maps (generally accepted technical things) are all examples of officially noticed evidence considered by a DMV forum.

Your lawyer asks DMV to take notice of these matters under these code sections.

If your BAC was:

a) not .08% or more at the time of driving, or

b) .07% or less at the time of driving,

your California DUI attorney then asks DMV for a SET ASIDE ORDER so you can continue to drive.

Rick Mueller is a San Diego DUI Attorney who has been practicing DUI law since 1983. He received his Juris Doctor degree from Chicago Kent College of Law and is also a licensed attorney in Illinois.

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