Monday, November 25, 2013

You are a Snowflake: The Mythos of Presumption: Breath - Blood Alcohol Ratios

Challenging Presumptions is Demanding
from private

Word play fascinates me, after all is there really a difference between assuming and presuming anything? Apparently in our day to day usage, NO, but legally we do have PRESUMPTIONS under the law. A Presumption is considered by the grammar police to be more founded or based on evidence or proof. Police have you walk imaginary (pretend) lines so wouldn't it be fitting to have them test your breath for alcohol using machines that presume as well?

Legal Presumptions

One presumption that works for you is the Presumption of Innocence, you are presumed innocent unless proven guilty (and guilty beyond a reasonable doubt at that). In other words, you start out under the law with a clean slate.

One presumption that works against us is the Presumption of Breath - Blood Alcohol Ratio. This has been set by the government at 2100:1. Every state in this country uses the same number on their breathalyzer machines. What that means is that the breath alcohol machine that takes your breath (that you blow into) and that will calculate your BAC (blood alcohol concentration) will use this average ratio. The measurement algorithm set in the device is going to use 2100 as a multiplier to arrive at your blood alcohol concentration.

You must remember that the device that measures your breath alcohol takes a very small sample. This is  a fraction of your total body/blood alcohol. It is expelled breath alcohol at a given point in time. How much alcohol your body is actually eliminating, the rate of your elimination, and the true concentration of the elimination is a guess. It may be an educated guess, but a guess nevertheless.

Some of my clients have swore that they only had a few beers. I have calculated their real BACs based upon all of their remembered timelines, consumptions, and time of testing. Sometimes their police BACs just don't match the facts. Truth and presumption don't always align.

Remember YOU are a special snowflake!


The breath machine assumes that your breath is 34 degrees.
The breath machine assumes that you are in the elimination phase of alcohol metabolism.
The breath machine assumes you are an average person (whatever that means).

No one is the same (hence my snowflake reference) but everyone is treated as if they are when it comes to breath alcohol testing. No person has the same metabolism as another, no person is 34 degrees all day every day, no person is static (metabolizes drugs the same way every day). We are all different and we are all dynamic. On any given day based on a number of things our bodies may deal with a drug (any drug) differently. Our bodies detoxify at different rates and times based upon our time clock, our food intake, and our general level of health.

This very fact can mean that a person with a .11 BAC may really be a .07 BAC or more or less (who really knows). Couple to this that your BAC may have been rising or falling from the time of your driving to the time of testing, and we have other issues to consider.

I have a computer program that can calculate someone's real BAC at the time of driving or at least a close average range based on a number of specific criteria. If they can give me the facts I can extrapolate the real numbers. I have used this program to either create a defense or call horseshit on a story.

Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

Originally, born and raised in Brooklyn, NY. My father was a NYS corrections officer, and my mother a waitress. I now live in Ithaca, NY with my wife (of 25 years), and four kids. I have a B.S. in Human Biology, Doctorates in Law and Chiropractic, and a Post Graduate in Acupuncture. I practiced as a Chiropractic Physician in Florida from 1986 to 1995. I graduated law school in 1997, and went on to practice trial law in FL, NY, NJ, and PA. I love practicing criminal defense and injury law within the Finger Lakes Region of New York State.

Over 90% of the cases that I take on are New York DWI defense cases. I am certified as a breath tester by the Department of Transportation, the guidelines of the International Association of Chiefs of Police (IACP), and the National Highway Traffic Safety Administration (NHTSA). I am certified in Field Sobriety Tests, and an active member of the National College of DUI Defense (NCDD). My online materials include over 450 blog posts, dozens of articles, and over 440 informative videos on my youtube channel.

I have co-authored Strategies for Defending DWI Cases in New York, in both 2011 and 2013. These are West Thomson legal manuals on New York State DWI defense, and focus on the best practices for other lawyers handling a New York DWI case. Included in Strategies for Defending DWI Cases in New York are materials I provide clients, such as my fee agreement and ways to avoid misdemeanor probation. I was selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and professional standing.