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It is unlawful to operate a motor vehicle with .08 or higher bac at the time of driving. Prosecutors often seek to get around the "at the time of driving" requirement by arguing that if a sample is taken within three hours of driving and the sample indicates .08 or higher, it is presumed the driver was at .08 or higher at the time of driving. The reason prosecutors try to use this presumption is because usually a person's blood is drawn a significant amount of time after they were driving. Thus the person's bac may have been going up or down in the time between driving the car and the time of the actual test. Generally presumptions in criminal cases are disfavored. However, depending on the specific facts of each case, a trial judge might allow a prosecutor to argue the above presumption. Regardless, the presumption is not mandatory-the jury may find based on that fact but they are not required to...Thus the presumption means nothing. The jury can find the person guilty or not guilty but are not required to based on any fact.
If an OWI case invovles an allegation of PAC/prohibited alcohol content (meaning .08 or higher at the time of driving), there will likely be a fight at trial over the level at the time of driving. Many prosecutors recognize that a person's bac goes up and down and some prosecutors will agree that a driver's bac was under .15 at the time of driving even if the test shows .16 after the driving. In this case, the driver may be able to avoid an ignition interlock device.
■Drunk driving/ driving under the influence/ DUI, DWI, OWI/ Operating while intoxicated generally refer to the same crime. Wisconsin Statute 346.63 defines the crime as: 346.63 Operating under influence of intoxicant or other drug. 346.63(1) (1) No person may drive or operate a motor vehicle while: 346.63(1)(a) (a) Under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving; or 346.63(1)(am) (am) The person has a detectable amount of a restricted controlled substance in his or her blood. 346.63(1)(b) (b) The person has a prohibited alcohol concentration.
■When a driver is arrested for drunk driving, unless there is a refusal by the driver to give a test of his breath, blood, or urine, a critical factor in the case will be the test of the driver's blood alcohol level, and factors that affect his blood alcohol. There are many things that affect the absorption, processing, and elimination of alcohol levels and may influence the results of a driver's b.a.c. test. Because of this, it is important to hire a criminal defense attorney that is familiar with drunk driving laws and defenses. There are several good dui attorneys in Madison that are very familiar with drunk driving defense.
■Some factors that will influence a driver's blood alcohol level through rate of absorption include:
1. Physical features such as size of a person's stomach lining: Since the surface area of a stomach lining is small, the amount of alcohol absorbed in this manner is usually only 20-25%. The remaining amount is absorbed in the small intesting which has a larger surface area and larger blood supply.
2. Type of alcohol ingested: Absorbtion of alcohol is greatly affected by the type of drink consumed. For example- diluted drinks take longer to absorb as do carbonated beverages. Also, alchol stronger than 40% is often thought to absorb slower because it acts as an irritant to the gastric lining and is retained in the stomach until there is other material to dilute the alcohol.
3. Emotional State
4. Shock- Shock (including a car accident) can cause the body to shut down and close off the stomach, thus the alcohol stays in the stomach and is not absorbed until later on;
5. Stomach Medications that affect the stomach or gastrointestinal tract: This is why the police ask driver's if they have taken any medication recently after the police stop the driver for suspected dui.
6. Presence of food in the stomach: This is the most important factor affecting alcohol absorption. Food requires digestion (unlike alcohol) and any alcohol trapped in the food will be absorbed at a slower rate than on an empty stomach.
■ELIMINATION OF ALCOHOL- It is generally estimated that people eliminate about .01 to .025% alchol per hour. The amount eliminated is thought to increase at higher levels of intoxication.
■Why does any of this matter? Well, in short, the above will affect the defense of your drunk driving case. For example, let's say a man has a shot of whiskey just before driving. The police stop the man five minutes later. The b.a.c. test does not occur until two hours later. The b.a.c. says 0.08. The above factors would be useful in helping determine the b.a.c. of the driver at the time of driving. The important part is that if a person was under 0.08 at the time he was driving, then he should not be convicted of driving with a prohibited alcohol concentration (PAC) even if a later test registers higher than 0.08.