Attorney Question Of The Month

For the July and August 2014 editions of this column, Network President Marty Hayes asked our Affiliated Attorneys about the use of blood alcohol content tests. If you missed the first half of this discussion this month, see it at Now, for the rest of our attorneys’ responses—

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?

Jerold E. Levine
Law Offices of Jerold E. Levine
5 Sunrise Plaza, Valley Stream, NY 11580
This email address is being protected from spambots. You need JavaScript enabled to view it.

Absolutely not.

To begin with, legal intoxication relates almost exclusively to driving offenses, and I would not do anything voluntarily to bring the concept into a self-defense shooting case.

Second, ANY level of intoxication CAN and WILL be used to show that the defender had at least impaired judgment. Even a small amount of alcohol impairs judgment, and the amount consumed is measurable on a Breathalyzer. And whereas a jury easily could infer that the defender was unimpaired enough to drive on a lonely road late at night with no traffic, his ability to make a definitely life-or-death decision about the use of deadly force is another matter. Let the prosecutor argue impairment without any hard evidence. Their argument for impairment will be countered by any defense witnesses who say that the defender “seemed normal” to them. Every apparently normal action of the defender will counter the prosecution.

And of course, if the Breathalyzer blows high, you’re screwed.

You cannot know for sure how much the client had to drink, and he may lie to you thinking that four or five drinks is O.K.

People have really skewed understandings of how little it takes to reach legal DWI impairment (in many states now .05) and intoxication (.08). And NHTSA is working overtime to lower the intoxication limit to .05...which they probably will succeed at doing eventually. Your client, who has been drinking, simply is not in ANY position to judge just how drunk he really is, and the attorney should not rely on the client’s representations.

Also, remember that by having your client take a Breathalyzer, which almost certainly is being administered by police, you are putting him into the hands of trained professionals who do nothing but observe and make notes about people suspected of being intoxicated. These pros are going to be supporting the police side of any case against your client, and their “observations” will be devastating. After spending 30 minutes asking the witness about all of his lofty credentials, you will hear the question, “And in your professional judgment, how did the defendant appear?” followed by the answer, “He appeared somewhat impaired in motor skills and spatial relationships.”

But it gets better yet. While your client is in the neighborhood, the intoxication pros will ask him to stand on one leg, or walk the line, etc., and if your client does not do well, KO for the prosecutor. (“If he couldn't even walk straight, how, ladies and gentlemen, could he responsibly handle a deadly semi-automatic weapon?”) And if the client refuses those tests, it will be used to infer that he was trying to hide something. Oh, and it will ALL be on a CD video and sound recording.

I don’t want my client anywhere near these people. They are professionals at making the client look bad, from start to finish, and they do it very well.