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DUI Conviction, Despite Breath Test Delay

Although the prosecution’s expert witness conceded there was no way of telling what defendant’s blood alcohol content was at the time of his driving conduct, about two hours before he blew a 0.08 BAC, the Court of Appeals affirms his conviction of driving under the influence, after two prior convictions in the past five years.

Defendant produced a BAC of 0.08 at 4:48 a.m. He was stopped at 2:30 a.m. The facts indicate defendant did not drink any alcohol between 2:30 a.m. and 4:48 a.m. According to the officer, at the time of day defendant was driving, it would take 20 to 30 minutes to travel from the District of Columbia to the location of the stop. There is no evidence defendant was drinking in his car. The car did not smell of alcohol, although defendant did. During this approximately two and one-half hour span between the stop and the test, defendant did not consume any alcohol. According to the evidence, his body was ridding itself of between 0.015 and 0.02 of alcohol concentration during each passing hour.

Defendant was tested well after an hour after his last sip of alcohol. The evidence supports a conclusion by the fact finder that his BAC was higher at the time he was driving than at the time of testing.

The commonwealth’s expert also testified to some of the behaviors that a driver at a 0.08 level of impairment might exhibit. She explained that a driver who is intoxicated at that level would likely display deficits in tracking his vehicle. Defendant swerved three times over a one and one-half mile stretch of road. She also noted that such a driver would exhibit a delayed reaction time. The officer testified that although defendant did stop his vehicle, it took him “a little while to stop.” Finally, the jury also could deduce from all the evidence that his excessive rate of speed was a symptom of his intoxication.

Judgment affirmed.

Harris v. Commonwealth (McCullough) No. 1865-12-4, March 25, 2014; Fairfax Cir.Ct. (Devine) John  A. Keats for appellant; David M. Uberman, AAG, for appellee. VLW 014-7-091(UP), 6 pp.

VLW 014-7-091

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