When police pull over someone they suspect has been driving drunk, they use a range of tests to determine his or her level of intoxication. Even if you don't have any firsthand experience, you've probably heard or read stories about the signs that officers look for: bloodshot eyes, the smell of alcohol on the driver's breath, and a litany of other sobriety tests, such as having the driver walk a straight line or recite the alphabet backwards.
Because many of these tests are seen as too subjective to accurately determine whether a driver is legally drunk, the typical fail-safe is the test that measures a driver's blood-alcohol level, either through a breath or blood sample. If it's above the legal driving limit of .08, an arrest is usually imminent. But what if that test isn't administered as soon as a driver is pulled over?
Sometimes a driver's blood alcohol isn't measured for hours afterward, for a variety of reasons. For example, if there was a crash and the driver is taken to a hospital, medical treatment usually takes priority over a blood alcohol test. During that time the level can go down, an argument the Oregon Supreme Court heard and decided on recently.
The case at issue originated in 2008 in Multnomah County, Oregon, where a driver was stopped and suspected of driving drunk. Although he was arrested, his blood alcohol wasn't measured until 90 minutes later, when it registered at .064. Prosecutors wanted to admit testimony from an expert witness who used a formula to determine that the driver's blood alcohol level was above the legal limit at the time he was stopped by police. The Supreme Court agreed in a 4-3 decision that the testimony should be admitted.
The high court's decision could have an impact on future DUII arrests if other police departments use the expert witness' formula, which means that even if you register a level lower than the legal driving limit in a delayed blood alcohol test, you could still be convicted. This development makes finding an experienced criminal defense lawyer well-versed in Oregon's DUII laws all the more important.
Source: KGW.com, "Oregon court ruling could mean DUII changes," The Associated Press, May 12, 2012
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