Michigan Drunk Driving Rising Blood Alcohol

The seventh most successful defense to a drunk driving case is the rising blood alcohol defense.  To fully understand and appreciate and articulate this defense, it does require a fairly sophisticated understanding of the metabolism of alcohol.  But when we look at the rising blood alcohol defense, if you look at the crime itself (operating while intoxicated) the rising blood alcohol defense refers to the “while” part.  In other words, the prosecutor must show that at the time the person was driving they had an unlawful breath or body alcohol content.

The test is taken, which is almost always is, about 45 minutes after the driving.  Then the question is, “What does that say about the person’s breath or blood alcohol level at the time of the driving?”  The answer maybe, “It says nothing!”  In order for you to properly understand and be able to evaluate this defense, you need to understand the metabolism of alcohol.  It’s not possible for me, in a few minutes, to explain to you the way that alcohol is metabolized in the body.  Typically when I teach this at my law school class, that in itself is at least a 2 hour class and then we can barely scratch the surface of alcohol metabolism.

The general principles are always the same, so you’ll need to understand that the metabolism  of alcohol essentially deals with the absorption, distribution, and elimination of alcohol.  So of course alcohol absorption begins once you consume the alcoholic beverage.  It travels in your mouth and down your esophagus into your stomach.  It stays in the stomach until the muscle at the juncture between the bottom of the stomach and the small intestine opens.  That muscle opens and closes based on the contents of the stomach.  If there’s food in the stomach, that muscle stays closed, and the alcohol stays with the food and the stomach.  If there is no food in the stomach, that muscle stays open and the alcohol goes from the stomach to the small intestine very quickly and very freely.

About 80% of the alcohol is absorbed is the small intestine, not in the stomach or the esophagus or the mouth.  Some is absorbed there, but the majority of it is in the small intestine.  In order to evaluate the rising blood alcohol defense, you’ll need to know the drinking pattern of your client.  When did the drinking start?  When did it stop?  How much was consumed?  Was there food in the stomach?  Once the alcohol gets into the lower intestine, then it begins to be distributed throughout the body.  Alcohol goes to where the water is, its water friendly, and the fancy term for that is hydrophilic.  It goes to where the tissues that have water in them are.  The brain just has  to happen to have a lot of water in it, it has very high water content.  It’s one of the reasons why alcohol goes easily to the brain.  It also goes to the other parts of the body that have, in proportion to, the amount of water that’s there.

Of course skeletal tissue, the skeleton and bones, have very little water in them and very little alcohol goes to the bones.  The same is true with regard to muscles and so forth.  Alcohol does get completely distributed throughout the entire body eventually and it reaches equilibrium.  After the equilibrium has occurred, there is a peak blood alcohol, and from that point forward nothing but elimination will happen.  Your critical determination in evaluating the rising blood alcohol defense is, “When did the peak alcohol occur?”  That’s going to be based on the things that we just talked about.

Alcohol is eliminated at a very constant rate.  Unlike many other drugs, alcohol is eliminated based on what’s called, “Zero Order Kinetics”.  What that basically means is, it’s not dependant on the amount of alcohol present.  If there is a very high amount of alcohol or a very small amount of alcohol, the amount eliminated over time will be the same in either of those instances.  Most other drugs (many other drugs) are eliminated on whets called, “First Order Kinetics” and the concentration is dependent on elimination, the more drug that’s present the more elimination that will occur.  Alcohol is in a class that we know the elimination is constant, and because we know this, we can make certain determinations and calculations about what an alcohol level was earlier in time.

Of course its important to understand that when we do those calculations were doing nothing other than extraporlating, which means to guess, its really nothing more than a guess.  In many instances you can argue that if the prosectur tries to put a witness on the stand to engage in what’s called, “Retrograded Extrapolation” they should not be allowed to do that because it’s really nothing more than guess work.  What we’re talking about now is your evaluation of your client’s case. 

In order for you to effectively and adequately raise a rising blood alcohol defense, you will have to have either eliminated the roadside breath test or have had no road side breath test administered to begin with.  That’s because if you argue rising blood alcohol, that is one of the most limited and small number of instances where the prosecutor will actually be able to have the preliminary breath test admitted into evidence.  Of course, that’s something you want to avoid.  In order to effectively pursue a rising blood alcohol defense it will be important for you to get the preliminary breath test eliminated by filing a pre-trial motion, as we’ve already discussed in one of the prior issues, or if there’s been no preliminary breath test at all.

It’s important to also understand that when we talk about a rising blood alcohol defense, that’s different than back extrapolation or retrograded extrapolation.  Because retrograde extrapolation is looking backwards in trying to determine what the blood alcohol level was at an earlier point in time.  That may be import for you to do in a case, but a rising blood alcohol defense you are essentially arguing that there’s no evidence of what the breath alcohol level was at the time of the driving.  All we know is what it was at some point later in time.  If a person drank enough alcohol they can actually rise very quickly, its different than elimination.  It’s possible to go from 0 to an hour later a very high breath test result if the alcohol is consumed just before the driving.

Again if you’re going to think about bringing a rising blood alcohol defense, in addition to the other factors that we’ve talked about, you will have to have consumption usually of a relatively large amount of alcohol immediately before  the person gets in the car and starts to drive.  Having said all of that, if you have the proper conditions, then it’s very possible to succusfully raise this type of defense and win your case.

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