Attorney Question Of The Month

For this column, Network President Marty Hayes asked our Affiliated Attorneys about the use of blood alcohol content tests–

If a defender has been drinking lightly and he/she is involved in a self-defense shooting, would you advise the person to ask to take a Breathalyzer to prove they are not legally intoxicated?

The responses were so numerous that we’ll need to continue this topic forward to the August edition of this journal, so enjoy the first half of this discussion this month, then be sure to come back next month for its conclusion.

John P. Sharp
Sharp & Harmon, Attorneys at Law
984 Clocktower Dr., Springfield, IL 62704
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This is far from a simple yes or no question. You ask if someone were “drinking lightly.” As attorneys with a very extensive DUI practice, the term “drinking lightly” can have as many meanings as there are individuals who use it. I cannot begin to count the times a client who was “drinking lightly” and told an officer he or she only had “a couple of beers” went on to submit to a Breathalyzer and blew far above the legal limit.

A large or heavy person “drinking lightly” may consider six or more drinks light drinking, or may regularly consume far more but not consider themselves impaired, when in reality they are well over the legal limit.

A small person, for example, a 105 pound woman, who consumes three drinks with dinner, could conceivably be approximately .09 one hour after her last drink. She might well believe she was “drinking lightly.”

There is also a difference between alcohol intoxication levels and levels at which a person is presumed to not be under the influence. In Illinois, a person stopped for Driving Under the Influence who tests .049 or less is presumed to not be under the influence. A person who blows .08 or above is presumed to be impaired.

In over twenty-six years of practicing DUI law, I have only seen a small number of defendants, probably less than ten, who ever blew under .049.

The vast number of people blow over the legal limit, despite their personal belief that they were “drinking lightly.” People, as a general rule, have no concept of how their bodies metabolize alcohol, absorption rates, or elimination rates. Most people we see for DUI are shocked to see how little alcohol is required for them to reach .08.

The type of alcohol being consumed would also be a factor. A person may consume light beer and have a lower BAC level than a person consuming high alcohol content import or micro-brew beer in the same amounts.

To err on the side of caution, I would not advise someone to willingly submit to a Breathalyzer. If the police believe the defender to be impaired, they will, in all likelihood, seek a search warrant for a blood draw. A blood draw is more accurate than a Breathalyzer, and can be far more revealing as to what a defender has in his or her system, such as drugs (prescription or illegal) and cannabis.

One should keep in mind, prosecuting authorities may feel more inclined to charge someone who tests over the limit for alcohol, or who presents blood with illegal drugs and cannabis, and even legal drugs if they do not have a prescription, or if they are a form of drug that could affect the person’s physical abilities or mental faculties.

The defender would become the defendant in short order if a prosecutor notes any type of impairment. Not being impaired could be a mitigating factor or an aggravating factor depending upon the outlook of the individual prosecutor.

Terry Ryan
The Terry Ryan Law Firm, LLC
800 Marshall St., Ft Collins, CO 80525
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I am presently defending two individuals who are charged with “drunk with gun” in Aurora, CO. Basically, the police ginned up a report that says they appeared intoxicated to create a basis for the charge. Aurora is pretty gun sensitive and their actual “crime” was open carrying at 10:00 a.m. No alcohol test.