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Essay: High BAC Doesn't Prove DUI

Judge: High BAC Readings Don’t Necessarily Prove DWI by David J. Hanson, Ph.D.

Alcohol breath tests are subject to many sources of error and their results vary at least 15% from actual blood alcohol concentration (BAC). At least 23% (about one of every four) individuals tested will have a BAC reading higher than their actual BAC.

Therefore, many people convicted of DUI/DWI simply on the basis of a breath test results alone will be innocent drivers who are falsely convicted.

In addition, about one quarter (24%) of alcoholics or people who are alcohol dependent show no clinical signs of impairment at a BAC of .10, which is 25% higher than the current limit of .08. So there are two obvious problems with convicting any and every driver who has an alcohol breath test reading of .08. Many people will have an actual BAC much less than their Breathalyzer readings.

Many alcoholics and others who have developed a high tolerance for alcohol will show no signs of impairment with an alcohol breath test reading of .08. However, they’ll be convicted of impairment. Because of these facts, Judge Ian O’Flaherty of Virginia believes that the state’s DWI law is unconstitutional. That law says that anyone with a BAC of .08 is presumed to be driving under the influence of alcohol regardless of any evidence to the contrary. The burden of proof is on drivers to prove that they weren’t intoxicated.

Judge O’Flaherty, who’s known as a tough judge, has ruled that the law is unconstitutional because under the US Constitution the burden of proof always rests with the prosecution, whereas the Virginia law puts the burden on the defendant. He cites Francis v. Franklin, a Supreme Court case in which the high court held that all elements of a crime must be proven beyond a reasonable doubt.

Please feel free to contact our office at 800.978.0186 or for answers to any questions you may have about DUI charges or arrests.