Reader’s Question:

Is it possible that I was intoxicated at the time that I was tested in Palm Beach, Florida, but not during I was driving? And, does this make a disparity?

Janice

Palm Beach, FL

The answers for both your questions Janice is yes. Our Florida law only offers that the felony of DWI happens when a person has an alcohol concentration of .08 or more in his body or has lost normal use of his intellectual or bodily abilities at that time that he or she is driving. So, the timing of the particular test in question can present a significant problem for either the prosecution or the defense (depending upon the circumstances). This problem usually arises in connection with breath or blood tests tested approximately 45 minutes to 1 hour and 15 minutes after driving. In such delayed testing, absent other information about the quantity of alcoholic drinks used, the type of drinks used, and information of when the drinks were consumed, a person’s alcohol level at the time of driving may have been elevated, dropped or the similar.

In order to link the test result to alcohol level at the time of driving the prosecution may attempt to present expert testimony. The procedure the “expert” uses to tell the test result back to the time of driving is known as retrograde extrapolation. Depending upon the facts in your case, the expert may use his facts regarding alcohol assimilation, circulation and removal to have the State’s extrapolation evidence excluded or to raise issues of reasonable doubt in connection with that evidence.