Supplement to Chapter 5

(Alcohol Intoxication Tests)

Copyright 2001 DH Kaye

Updated text from Lawrence Taylor, Drunk Driving Defense

Replace the original excerpt at page 55 with the following:
. . . The accused's right to jury trial has increasingly been determined by a breath analyzing machine device. . . .

Many judges . . . will not even permit a drunk driving defendant to enter a plea at his arraignment unless the results of the blood or urine analysis are returned from the crime lab. Prosecutors in many, if not most, jurisdictions will use the blood alcohol reading in a given case as a gauge to plea bargaining. If a reading is below .08 percent, for example, a traffic violation may be offered in lieu of a plea of guilty; if the reading is between .08 percent and .11 percent, a plea to the lesser included offense of reckless driving may be offered; and if the figure is .12 percent or over, the prosecutor will probably insist on a straight plea as charged. Sentencing, too, is affected in many courts by the blood-alcohol level. As an example, one jurisdiction imposes one day in jail for each point above over .10 percent. . . .


Update the citation to McCormick at the end of the first paragragh of note 2 at page 65 with the following: cf. 2 McCormick on Evidence 347, at 472 (John W. Strong ed., 5th ed. 1999) (some authors have suggested that a mandatory presumption that shifts the burden of persuasion "may not constitutionally exist").

The domain of the statutory presumptions and procedures

Replace the last sentence of note 2 at page 68 with: "On the impact of civil presumptions generally, see, for example, 2 McCormick on Evidence 344 (John W. Strong ed., 5th ed. 1999)."

Proving intoxication with blood tests

In the first paragraph of note 3, pp. 68-69, the citations should be replaced with the following: "For details, see 2 Richard Erwin, Defense of Drunk Driving Cases 17.08 (3d ed., 1997); Yale Caplan, The Determination of Alcohol in Blood and Breath, in Forensic Science Handbook 592, 605-41 (Richard Saferstein, ed., 1982)."

Replace the citation to Giannelli & Imwinkelried in the penultimate sentence with: "But see 2 Paul C. Giannelli & Edward J. Imwinkelried, Scientific Evidence 22-4, at 292 (3d ed. 1999) (limited value of two tests)."


Add to p. 69 n.3: By defining the offense to consist of "actual physical control of any vehicle . . . if the person has an alcohol concentration of 0.10 or more within two hours of driving . . . ?" 28 Ariz. Rev. Stat. sec. 28-1381 (1997). Under a "two-hour law," what happens if a test administered two hours and seven minutes after driving shows a BAC of 0.20? Can the jury infer that the BAC at the time of driving was at least 0.10? At the end of of two-hour period after driving? Can expert testimony extrapolating to the two-hour period fill the gap? Must the extrapolation go back to the start of the two-hour period, or is a valid extrapolation to the end of the period sufficient to prove the offense? See State v. Claybrook, 975 P.2d 1101 (Ariz. Ct. App. 1998).

Can a legislature constitutionally create a presumption of impairment conditioned on a finding that breath or blood alcohol exceeds 0.08 up to several hours after driving? See State v. Klausner, 978 P.2d 654 (Ariz. Ct. App. 1998). Will an extrapolation also trigger a statutory presumption of intoxication under a statute that does not define the offense in terms of BAC or BrAC? See State v. Root, 973 P.2d 1203 (Ariz. Ct. App. 1998).

Proving intoxication with breath tests

Update the citation to Giannelli & Imwinkelried in note 4, page 69, with the following: But see 2 Paul C. Giannelli & Edward J. Imwinkelried, Scientific Evidence 22-3(B), at 274-77 & 22-6(D), at 308-10 (3d ed. 1999) (collecting cases concerned with possible electromagnetic interference).

Proving intoxication with other evidence

Replace the citation to the Talkor book at the end of the first paragraph of note 5, page 70, with "Lawrence Taylor, Drunk Driving Defense 5.0, at 246 (5th ed. 2000)" (and change "after=thought" to "afterthought" in the quotation).

Related constitutional questions

Update the citation to Giannelli & Imwinkelried in note 6, page 71 to "2 Paul C. Giannelli & Edward J. Imwinkelried, Scientific Evidence 22.7 (3d ed. 1999)."

Implied consent laws

Add to p. 71, n.6: In South Dakota v. Neville, 459 U.S. 553 (1983), the Supreme Court held that admitting into evidence a defendant's refusal to submit to a blood alcohol test did not offend the right against self-incrimination.

Other intoxicants

Add to p.71, n.7: Legislatures have relaxed the need for the state to prove actual impairment resulting from drugs other than alcohol. "At least 12 states have what are known as per se drugged driving laws, which in their strictest form (called zero tolerance laws) forbid drivers from operating a motor vehicle if they have any detectable levels of of illicit drugs or drug metabolites present in their bodily fluids." Mark Hansen, Drugged State, ABAJ, Dec. 2005, at 12, 12. For example, an Arizona law states that "[i]t is unlawful for a person to drive or be in actual physical control of a vehicle . . . [w]hile there is any [proscribed] drug . . . or its metabolite in the person's body." 28 Ariz. Rev. Sate. 1381(A)(3).

Suppose that driver thought to be intoxicated is stopped, that breath alcohol tests show concentrations of under 0.03%, but that a test on a urine sample is positive for carboxy THC, a metabolite of marijuana. Impairment lasts only as long as the drug is present (and being metabolized into its components) in the bloodstream. However, metabolites to some drugs (including marijuana) can be found in the urine days or even weeks after the drug was used. Is the metabolite provision of the law consistent with due process of law? See State v. Hammonds, 968 P.2d 601 (Ariz. Ct. App. 1998); cf. State v. Boyd, 31 P.3d 140 (Ariz. Ct. App. 2001). Can it be reconciled with Robinson v. California, 370 U.S. 660 (19__), which held that imprisonment solely because an individual is a drug addict is cruel and unusual punishment? Cf. Powell v. Texas, 392 U.S. 514 (19__) (distinguishing Robinson in the case of a chronic alcoholic's arrest for public intoxication on the ground that the individual was being punished for an act (being drunk) rather than his status as an alcoholic).

Practical considerations

The most powerful laws against DWI can be rendered ineffective if they cannot be enforced adequately. Yet, state and local laboratories sometimes lack the resources to meet the demand for blood alcohol testing. The result in some jurisdictions is not merely delay, but case dismissals. See, e.g., Jim Walsh, DUI Blood Tests Flood DPS Lab, Arizona Republic, Oct. 11, 2001.

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updated 22 Oct. 2001