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One for the road

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The Unforeseen Consequences Of “One For the Road”

On a Tuesday night, Sarah is dining at a local restaurant with a close friend. The two women decide to share a bottle of fine wine. During their hour long dinner, Sarah nurses a single glass of wine. Towards the end of the meal, a second glass is poured, and she drinks this one as well. Noticing that it is becoming late, Sarah quickly downs the last of her wine and leaves the restaurant. Two blocks from the restaurant, she is pulled over by a police officer. After field sobriety tests have been administered, she is transported to the local police precinct to be given a Breathalyzer test. The Breathalyzer test determines that her BAC levels are .09% - just slightly over the legal limit for New Hampshire. She is subsequently booked on charges of driving while intoxicated and placed in jail.

However, in reality, Sarah’s blood alcohol content levels were much lower. If a blood test had been administered, rather than a Breathalyzer test, the test would have produced a result of .06%, which is well under New Hampshire’s legal limit.

One of the primary causes of error in the analysis of alcohol on one’s breath is simply subjecting the suspect to a test too early. Such tests are often administered while the subject’s body is still absorbing the alcohol. In the human body, alcohol absorption can continue for 45-120 minutes after the subject has finished drinking, potentially even longer. The peak absorption time generally occurs within 60 minutes. If food is present in the subject’s stomach, then the absorption of alcohol can be delayed by as much as four hours. Two hours is the average for most people.

During the absorption phase, how alcohol is distributed throughout the body is far from uniform. Uniform distribution, which is referred to as equilibrium, will not be achieved until the alcohol absorption is complete. Simply put, there are certain areas of the human body that will have a greater concentration of alcohol than other parts. One of the prime issues that arises from non-uniformity is that the presence of alcohol will be considerably higher in arterial blood than in veinous blood. During the peak absorption period, the blood alcohol content of arterial blood can be as much as 60% higher than the BAC levels of veinous blood.

This little biology lesson becomes particularly relevant in DWI cases because human lungs contain alveolar sacs that contain arterial blood – not veinous blood. Alcohol’s diffusion through these sacs and into the air of the lungs reflects the blood alcohol content of a person’s arterial blood. Consequently, the breath sample utilized by a Breathalyzer machine will be indicative of pulmonary BAC, which, as aforementioned, is considerably higher than the BAC content of veinous blood.

One of the most well-regarded experts in the field of blood analysis, after conducting extensive research, came to the following conclusion:

“Breath testing is not a reliable means of estimating a subject’s blood alcohol concentration during absorption…..

There is a significant likelihood that a given subject will be in the absorptive state when tested under field conditions.  Because of large differences in arterial BAC and veinous BAC during absorption, breath test results consistently overestimate the result that would be obtained from a blood test — by as much as 100% or more.  In order to have some idea of the reliability of a given breath test result, it is essential to determine by some objective means whether the subject is in the absorptive or post-absorptive state.  In the absence of such information, an appropriate value for the uncertainty associated with the absorptive state should be applied to all breath test results.  Simpson, “Accuracy and Precision of Breath Alcohol Measurements for Subjects in the Absorptive State”, 33(6) Clinical Chemistry 753 (1987).

University of Oklahoma Professor Kurt Dubowski is today’s most regarded expert in the field of blood analysis, and he agrees with Simpson’s findings. He issued the following statement regarding the matter:

“When a blood test is allowed, an administered breath test is discriminatory, because in law enforcement practice the status of absorption is always uncertain.”

The next time you are out for a night on the town, you might want to consider passing on having “one for the road”.

If you should be arrested and charged with a DWI in the state of New Hampshire, please contact our law firm today to speak with one of our experienced New Hampshire DWI lawyers. Your initial consultation is free, and we will work closely with you to obtain the best possible outcome in your case.



Disclaimer: Past results do not guarantee a future outcome. Results include cases in both Massachusetts and New Hampshire. Attorney Dan Hynes is admitted to practice law only in Massachusetts and New Hampshire. This website may be considered advertising. Contacting us does not create an attorney/client relationship and the information on this site is not legal advice and may be inaccurate or not applicable to your case. Each case is different.

Mailing Address: Dan Hynes PO BOX 598 Merrimack, NH 03054