The Plausible Big Gulp DWI Defense
Defending DWI cases means looking hard at the facts in every case, and then determining if something is in truth plausible. Plausible means many things to different people but to the majority it speaks to not only possible but likely. In other words, not a shot in the dark or the needle in the haystack, something more than that.
Raising defenses means taking an offensive approach. With the DWI "big gulp" defense not to be confused with the massive 7-11 drink by the same name, you have taken a big gulp of alcohol or drink or shot right before driving your car. As to whether that sounds plausible, well watch any movie, TV show, or ask your bar going or frequenting friends, people don't like to waste precious (expensive) drinks, and people do take shots.
The Passage of Time After the Big Gulp
You leave the bar or a friend's house and then at some time later after you have been stopped by the police, after being sobriety tested, and after more time then breath or blood chemical tested you registered over the legal limit of .08 BAC.
It is said, "Time can be your friend or your enemy."
The chronology of a DWI case is crucial because the consumption, absorption, and elimination of alcohol from the body is a dynamic process not static. Nothing stands still, everything is moving forward but things go up and then go down. Alcohol levels will rise then they will fall. This is physiology at it's best.
Using the DWI Defense of Retrograde Extrapolation
A big term easily understood, take a point in time after consumption of alcohol, we have a BAC (blood alcohol concentration) level, that is post-consumption, but not post-absorption (if your body is still absorbing alcohol) then figure backwards (retrograde) what the measure of the alcohol level could have been earlier in time (like at the time of actual driving).
BAC at time of driving (DWI) ?
BAC post arrest (preliminary breath test) which is inadmissible in NY but may help us
BAC chemical test (breath or blood) at some time after driving and DWI arrest
Actual BAC at time of driving calculated (backwards) less than at time of chemical testing
DWI Retrograde Assumptions
1. When the body processes alcohol it is first absorbed (goes up) then eliminated (goes down). The first assumption is that your BAC was on the rise, was still being absorbed by your body.
2. You took a big gulp or a large amount of alcohol right before driving your car. A strong shot or large amount of alcohol could be equal to two or three drinks or .04 BAC to .06 BAC in addition to a BAC under .04 (approx. two drinks or less).
3. The police tested you at a time post arrest, post driving, but not post absorption so your BAC was still on the rise and much higher than at the time of your driving.
You were not DWI because the WHILE component was not satisfied, remember it is always Driving
WHILE Intoxicated. They must be simultaneous. The pressing question for the jury will always be what was the ACTUAL BAC at the time of driving not some educated guess or calculation.
If you have questions about a DWI charge in New York, call us at 607-229-5184
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BY NEWMAN & CYR
Copyright 2016. Educational Use Only.
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