Charged with DUI without being behind wheel of car? Wrong weight and BAC?

Asked over 3 years ago - Du Bois, PA

I was arrested at the beginning of this month for DUI. I was inside a gas station when a cop approached me and asked if that was my vehicle outside I responded with yes and he asked me to come outside. He first told me a concerned citizen called and said I hit the curb coming into the gas station. (My car wasn't parked by the gas pumps) He asked if I would do a sobriety test and I failed. I had to use the breathalyzer and failed blowing a .099 I was placed under arrest for DUI and taking to the hospital for blood work. I was released to my father (i'm 29) When I got my papers it had my height and weight wrong. Since my weight was 60lbs lower can the BAC (which turned out to be .197) from blood be thrown out and not used in court?

Attorney answers (3)

  1. Forest Dean Morgan

    Contributor Level 17

    Answered . The defense of a DUI case requires an analysis of all facts concerning the arrest including, but not limited to the following (1) Probable Cause to Detain, (2) Probable Cause to Arrest, and (3) Chemical Testing.

    Here, the officer detained you based upon the report of a "concerned citizen." it is important for you, through counsel, to determine whether that citizen has been identified and whether he/she will be available for trial. Second, it is important to determine whether the officer had probable cause to arrest you. The "failure" of a Field Sobriety Test is not uncommon because, quite frankly, the tests are a subjective evaluation by an individual who already suspects you are intoxicated.

    Finally, and most pertinent to your question, the actual chemical testing must be evaluated. The fact that your height and weight are incorrect are not relevant to this issue. However, depending upon the laboratory where the testing was conducted, and the means by which the test was conducted, it is possible to challenge these results.

    It is imperative that you retain legal counsel as soon as possible to advise you of your options.

  2. Adam D. Zucker

    Pro

    Contributor Level 17

    Answered . Mr. Morgan is correct in his description of the process and what does and does not matter. I would only add that you need a qualified attorney to assist you with this case as there still may be viable defenses that you can assert, but you will need counsel to help you. The most glaring to me is that the Commonwealth will have to show that you were driving your vehicle within two hours of your BAC test. Admitting the car is yours is not the same as admitting you drove it 10 minutes ago. Now the Commonwealth may have witnesses or other evidence such as the officer feeling heat off the hood of the car indicating it was recently driven. Regardless there are still defenses worth pursuing.

    This response does not create an attorney / client relationship and should not be relied upon to make decisions in any case. It does not substitute for hiring your own attorney and consulting with him or her to provide in depth legal advice.

  3. Brian Vincent Manchester

    Contributor Level 10

    Answered . Your weight being different will not affect your BAC. That could go to absorbtion. What you have to look at in blood test cases in Clearfield is the test itself. What they generally do in Clearfield is draw the blood at the hospital and send it to the State Police crime lab for testing. How they test blood at the crime lab is by using a process called gas chromotography, in particular headspace gas chromotography with flame ionizing detector (HS-GC-FID). The machine used is called a gas chromatograph.

    What happens is your blood is put in what is called a headspace vial and mixed with an internal standard. It is then heated and the air above the blood in the vial is supposed to contain the same amount of alcohol as what is contained in the blood. This scientific process is based on Henry's law. The air is then sampled by inserting a needle into the headspace and injected into the gas chromatograph. What happens is a carrier gas carries the headspace gas through a coil the size of several hairs. Inside the coil, which is a hollow tube with a chemical liner it, the different substances in the air sample bounce around the coil at different times. This is called elution. As the different substances come out of the coil they are then vaporized by a flame, the vqaporization is then read by a detector as an electronic signal and those signals are printed out on a graph. The area under the different peaks on the graph represents the amount of the substance. In this case the relevant substance is ethyl alcohol.

    That is the basics of the science behind the test. Even though gas chromotography is reletively state of the art there are many problems that can occur from the time of the blood draw to the test itself. The only way to sccessfully challenge the blood test is to know how the science behind the test as well as how to relate that information to a judge or jury in an understandable way.

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