Breathelizer .10, latter blood test was .56

[WhiteMtnGirl36]

New Hampshire.
I was arrested for DWI. I took a breathlyzer but knew it was off. You have the right in Nh to then get another independent test done. I then went to the hospital and had the blood test done there. It was 7, even though the proper police kit and proceedure were not used.
I've seen several lawyers and they all said the way the test was done likely cause that reading to be much higher. They said if was sent out to a regular lab for re-testing it should be 5.6.
5.6 is well under the legal limit.
They have already taken my license and given me a pick 30-dat temp license. I have a job that requires a license and am the sole supporter of my son and mother.
I have to go to a hearing at the DMV to try to save my license. If the blood comes back 5.6 does anyone know if they have to stop the civil ALS suspension and drop the case? If so, who would I call about it?
What about the time period between the station and getting to the hospital to get blood drawn.
Can they just say the alcohol must have left my body quickly? There is no way to get a blood test at the police station and no one can help the extra time to get to the hospital or doctor's for a blood draw.
I has 2 glasses of wine at a small dinner party at my friends house and was not anywhere near .10. I have a professional career that requires me to
have a driver's license and I am the sole support of my mother and my son.
My life will end if I lose this case. Anyone know anything about taking a blood test after a breathlyzer and how theydeem the results if it's been a couple hours since the arrest? 5.6 sounds right for what I had to drink.

 

[CdwJava]

Hospitals test blood in a different manner than the police might. Most breath testing devices have an acceptable error rate of +/- .02 (so your breath may have been between .12 and .08). Hospitals tend to utilize serum (or plasma) tests as opposed to the whole blood test generally conducted by a forensic laboratory. The serum/plasma test can be slightly higher (some reports indicate 10-20% higher) than a whole blood test of the same sample. So, if the attorneys you spoke to say the reading should have been .056 at a crime lab, then I am assuming the hospital actually had your ETOH (i.e. BAC) at higher than that.

You will likely have to have your attorney address this issue. Law enforcement appears to be using their breath test and will likely argue that your BAC was descending. Unfortunately for you, even given the acceptable deviation on their machine, the official result will likely be the .10 (because it has a low end of .08).

Understand that alcohol purges from the body at a rate between .01 and .015 per hour. Your BAC can go up rapidly, but it will always come down slowly. Two glasses of wine - assuming 6-7 ounce glasses - should have only brought you to a .04 in less than an hour. Unless these were some pretty potent or large glasses of wine, a .10 would be very surprising even if you were petite.

If your career depends on beating this, then you really need to fork out for an attorney.

 

[FlyingRon]

First off, the BAC wasn't 5.6 or even .56 I suspect. 5.6 is impossible and .56 is also practically a lethal dose (I had a guy blood test a .42 and was still talking but I've also seen people dead at levels less than that). You may wish to review what it takes to get a small woman up to .08. While I can drink four 5 oz wine servings at 220 lbs, my smaller wife can only drink have of that.

Heed CDW well especially his last line. You have not only the various BAC readings to impeach potentially but even if you were below .08, that's only the per se intoxication limit. Were FST's administered?

You've got not only the administrative action but the criminal charges to worry about. Since you've got the hearing scheduled, they've either got the blood test back or their proceeding on the breath test data. A lawyer might get the breath tests thrown out *IF* the blood test is below .08. However, there's no rising or falling test matters on this. It's cut and dry. If there's a reading of .08 or higher, you will be suspended.

Again, your best shot is with an attorney...they know exactly how to attack these in the venues you will be appearing in.

 

[WhiteMtnGirl36]

Blood test vs breath test

The blood test at the hospital was done without the use of a police blood testing kit and with an alcohol swab and so forth. It was .7. If done correctly, I was told it should be between .5 and .6. The police did not wait around for the results. They went by the breathelyzer only.
I am 5'8, 150 pounds and had 2 glasses of wine with witnesses. I also suffer from allergies and had taken something similar to benedryl. Not sure if that could have inflated the result?
FST's were done and I believe that I passed them. i was not pulled over for weaving or speeding or anything that would indicate intoxication. The cop claimed a light was out (it wasn't). I wasn't cited for anything but the DWI.

I live in a rural area. I have spoken with local attorneys but they primarily do plea bargains which I am NOT interested in because I know I was not drunk or impaired. To hire an attorney from a city in the Southern part of the state would be more money then I could possibly beg or borrow and they provide no guarantee's anyway.

Isn't there some way to get the blood properly tested and argue to the DMV and prosecutor that they should be going by the blood? I know blood is much more reliable then a breathelyzer.
I support my son and my mother and losing my license will have severe consequences for all of us. That is why I don't have more then 2 drinks (and I also had dinner.)
The woman whose home I had dinner at will testify to the 2 drinks.
Shouldn't that testimony with the blood be enough to get rid of this and show the breathelyzer was clearly off by more then the standard deviation?
Perhaps it was not serviced properly or was pre-calibrated?

 

[justalayman]

as Ron stated, your statement of the results are likely using the decimal in the improper position. A .56 is generally considered to be a lethal level.
(from the site linked later)

Scientists use the term "lethal dose" (LD) to describe the blood alcohol concentration that produces death from alcohol poisoning in half the population. Most authorities agree that BACs in the 0.40 - 0.50% range meet the requirement. Since studies of lethal dosage cannot be empirically tested in the laboratory, scientists estimate the LD for alcohol from post-mortem cases in which alcohol poisoning was the primary cause of death. Cases of fatal overdoses from alcohol at BACs lower than 0.40% have been documented, as have cases of survivors at BACs higher than 0.50%. To place this in perspective, a 100-pound woman or man who consumed 9-10 standard drinks in less than one hour would be in the lethal dose range

=WhiteMtnGirl36;2702175]

Isn't there some way to get the blood properly tested and argue to the DMV and prosecutor that they should be going by the blood?

Not sure what you mean "properly tested". Either the manner of testing is accepted by the courts or it is meaningless. If the testing manner used is acceptable but results in a higher level than some other manner of testing, that would be used to either dispel the accuracy of the test or allow the results to be tempered as needed to give a result relatable to the court accepted testing manner.

I know blood is much more reliable then a breathelyzer.

was the breath a roadside or station unit?

s. That is why I don't have more then 2 drinks (and I also had dinner.)

is a full drunk any safer than a hungry drunk? Food will slow the uptake of alcohol but does not diminish the eventual levels and affect.

The woman whose home I had dinner at will testify to the 2 drinks.

she can testify she saw you drink two drinks. Unless she was with you every minute of the day up to your situation, she cannot testify you did not drink more than that. So, at best you have a witness that can testify you had at least 2 drinks.

Shouldn't that testimony with the blood be enough to get rid of this and show the breathelyzer was clearly off by more then the standard deviation?

no, especially if there was more than a couple minutes between the tests. Rising levels can escalate quickly. Falling levels, a lot slower.

Perhaps it was not serviced properly or was pre-calibrated?

that is something that would be addressed through the trial. While it is a possibility, I wouldn't count on it.

according to this link Blood Alcohol Concentration(BAC)

for the purposes of establishing a standard, 1 glass of wine is considered to be 4.5 oz. That is actually a quite small glass of wine, think 1/2 a cup of coffee size so, 2 glasses would be a bit more than 1 cup (and that is an actual 8 oz cup, not a mug). With a dinner, that is a very small quantity of wine. With a dinner/drinking wine, a "glass" of wine would more likely be at least 1 1/2 times that, if not more. 12 to 16 oz would be a more common dinner serving.

Then, your weight has not been mentioned. That makes a great difference in the BAC.

So, check out the chart and use some realistic (as accurate as you can determine) serving size and your weight and try to calculate what your BAC should be.

 

[WhiteMtnGirl36]

Breath vs Blood testing

I would say the glasses of wine were about 6oz pours (having previously worked as a bar-tender that is my best estimate). The dinner was several hours long and more then 1 person saw me take only 2 drinks. Immediately prior to the dinner I was with my son all day and he is old enough to testify I had no alcohol.

I weigh 150 so at 6z pours I would say that about .5 (or .05? I am not sure where the decimal goes but the breath was .10 and the blood was LOWER)on the blood should be accurate if alcohol leaves the body slowly. Well within the legal limit.

The breathelyzer was the Intoxilizer 5000, which I know some states no longer use since it is not very reliable. I know what I had to drink. I did not drink giant 8 oz glasses of wine and I was not impaired in any way. It was never even alleged I wasn't driving safely and I had no problem with the FST's.

 

[CavemanLawyer]

The Intoxilyzer 5000 model is not unreliable at all and I am unaware of any movement to quickly upgrade away from that equipment. It is by far the most widely used model of Intoxilyzer and many agencies are still looking to upgrade TO that model. There are newer models but they are primarily improvements on size and cost rather than reliability. You can never rule out a falsely inflated result but the intoxilyzer has numerous safeguards against this and if it is not calibrated properly or there is anything interfering with the test then in almost all cases the machine terminates the cycle and refuses to give a result.

As far as the blood results, if you are talking about anything in the 5-7 range then there is no doubt you are talking about .07 -.05. Moving the decimal point any higher would be either lethal or impossible. Hospitals typically only test blood serum as opposed to whole blood which is what a crime lab would test, and what the .08 legal standard contemplates. The conversion for the mean difference between the two is to divide the serum result by 1.16. (This gives you your mean, the actual can be slightly higher or slightly lower.) It is entirely possible that the hospital did test whole blood and your BAC was around .07. If they did only test serum blood then that converts to about .06. Either way it is not inconsistent with a BAC of .10 at the time of the intoxilyzer test if it took much more than an hour to have the blood drawn. You BAC can easily drop more than .02 per hour after it has plateaued. If anything, the blood test seems to validate the initial intoxilyzer test. The legal question is what your BAC was at the time of driving. Taken in conjunction, these two tests definitely show it is at least probable that your BAC was over the legal limit at the time of driving.

As far as administrative driver's license suspensions are concerned it doesn't matter what a subsequent blood draw result shows as long as the original intoxilyzer result can be shown to be valid.

 

[aldaron]

Anyone notice she took some benadryl along with 2 drinks? Just benadryl alone makes me a lil wooozy.

 

[justalayman]

Anyone notice she took some benadryl along with 2 drinks? Just benadryl alone makes me a lil wooozy.

Ya but for it to kick her BAC up much, it would have to have been liquid and she would have had to drank quite a bit. If I recall dosages are generally quite small with benydryl (like in a couple teaspoons or at most a couple tablespoons)

 

[WhiteMtnGirl36]

Blood vs breath testing

No, I didn't chug a bottle of benedryl, it was taken as perscribed. I am certain of what I drank which was no more then 2 6oz glasses of wine. I don't have reason to lie since this is an annonymous post.
I checked the tables to see what my BAC should have been and it should not have been near .10 but closer to the .06 the blood test should show when testing with whole blood (vs. the .07 when the hospital tested the serum blood.)
Blood testing is known to be much more reliable then breath and I know what I had to drink. 2 glasses of wine is not so much that someone could lose track.
If anyone has any serious reasons for the descrepency and how to fight it that would be great. I am required to have a valid DL for my job and I live in an area with limited work options and support my child and my mother alone.

 

[CdwJava]

Most DUIs are beaten in one of two areas. The first being the reasonable suspicion for the detention (the stop), and the second being the probable cause for the arrest (usually by challenging the officer's ability to perform and evaluate the FSTs correctly). Very, very, VERY few cases win when challenging the accuracy of the breath test device. I imagine your attorney will seek the maintenance and calibration results of the Intox 5000, but if they are within manufacturer specs and state law, a successful challenge to the machine and the test will be nearly impossible - and very expensive (as it will require hired experts to try and cast reasonable doubt).

So, when you get an attorney he or she should evaluate the whol case and advise you how to proceed. As a note, an attorney that specializes in DUI defense is likely to be much more expensive than one who does general criminal law. Out here a vigorous DUI defense can cost on the LOW side about $5,000 with an average of about $7,500 all the way through trial. I imagine it is similar out your way.