THE LAW OFFICE OF DENISE KIRBY     KANSAS CITY'S AWARD-WINNING DWI DEFENSE     816.221.3691

 

 

 

 

 

NOT AN ORDINARY CITY.

NOT AN ORDINARY ATTORNEY.

Your Questions

I gave a blood test. Now What?

Blood tests can be challenged on numerous grounds in Missouri DWI cases. There are specific methods that must be followed in extracting, storing, moving, and testing blood samples. There are personnel and lab qualifications that must be met. There are many issues surrounding blood samples that can be brought to light.

How was the blood sample collected and by whom?

The person extracting the blood sample must be qualified. Not just anyone can draw blood.

Assuming we have a qualified person, then there are a multitude of steps that have to be followed. If they are not properly followed, depending on the facts and the Judge, the evidence may be excluded, or the jury may view it as less than reliable. The blood should be drawn from a vein, as opposed to an artery, into a vial. There has to be a sufficient amount of blood drawn, and it must be properly mixed with sufficient amounts of preservatives and anticoagulants. Just in re-reading the previous sentence you can get a sense of all the potential issues that may arise from the beginning stages of a blood draw. The best DWI defense attorneys examine proof of every single step: If any one of these requirements isn’t met, it is possible to get your blood test thrown out )that is, excluded or suppressed instead of used against you).

Storage, Transportation, Chain of Custody of Blood-Alcohol Test Results

Assuming a qualified person (e.g., nurse, phlebotomist, etc.) properly prepped the extraction area and then extracted from a vein a sufficient amount of blood into a proper-sized, non-expired vial — such as a gray-topped 10 milliliter vial that contains sufficient amounts of preservatives and anti-coagulants — and then sealed the vial and properly mixed the contents of the vial (by inverting it 8 times), then that vial must be labeled correctly, stored, and transported for testing.

If the vial of blood is not labeled correctly, then the results have to be excluded because they may not belong to the subject.

If the vial is not stored at the correct temperature, that will cause natural fermentation to accelerate, again leading to a higher blood alcohol content reading.

Chain of custody has to be proven by the prosecution. The prosecution has to show that the location or whereabouts of the sample has been accounted for at every step so as to tie the blood sample to the defendant. If the prosecutor can’t prove the blood was properly handled, a good defense attorney will keep the blood test result from ever being used against you.

How About Retesting the Blood by the Defense?

The quantity of blood that is extracted must be enough to allow a portion of it to be tested by the government and a portion of it to be preserved for testing by the defense. If blood is missing, or none is preserved for the defense to conduct its own testing, the prosecution has to explain why that is the case.

There are times when retesting may be appropriate, but if the defense is based on contaminated blood, then a retest is useless and should not be undertaken.

Assuming the blood was not drawn properly — or that no measures were taken to slow down the natural fermentation process, or certain errors were committed that contaminated or fermented that specific sample — by the time the sample reaches the government’s lab for testing, the contamination or fermentation has already caused issues with the blood sample.

Because the contamination had already occurred before the government tested the sample, any subsequent testing of that contaminated sample will yield an improper or unreliable result. In other words, since the sample was compromised or bad, a retest is not going to fix or address the problematic blood sample. Again, your DWI defense attorney should work to prove that the sample, therefore, cannot be used as evidence against you.

Additional Potential Defenses to Blood Tests

The above list is not exhaustive. Depending on the facts of the case other defenses may be available.

The only way to determine whether any potential defense exists is to actually roll up the sleeves and get to work on finding them.

And that is exactly what I will do.

 

I Gave a Breath Test. Now what?

Defenses to Breath Tests for Blood Alcohol Content (BAC)

Whether you were asked to blow in the roadside handheld gadget or into a larger more accurate machine at the police station, the truth remains that BAC breath test machines are not perfect. They have to be calibrated and they have to be properly administered by a qualified person. I will provide a few of the potential defenses that may be available to you.

Breath Machines Require Maintenance to Work Properly

Breath machines are by no means infallible. They are gadgets that require upkeep and maintenance. In Missouri, they have to be checked every 35 days. If the machine is not working properly, then it has to be calibrated.

Sometimes the records show the machine was not functioning properly, or was reading too high (or too low). There have to be records of repairs, calibration, accuracy checks, maintenance, etc. Sometimes records cannot be furnished or are missing. It is the prosecution’s burden to prove the machine was working properly. If the machine was not working properly, a good DWI defense attorney will argue that the evidence is not reliable and therefore not relevant and that it should be excluded. If the Judge allows the evidence to be introduced, the defense attorney will argue that the evidence should be given little or no weight or importance due to the issues surrounding the machine.

Accuracy Checks and Calibrations Have to be Done Properly

In order to determine whether a machine is working properly, a certain methodology has to be followed. If that methodology is not properly followed, then that casts doubt on the reliability of the result. When a result is not reliable, then it is not relevant, and evidence that is not relevant is not admissible.

For example, to ensure reliability, accuracy checks require the simulator solution to be heated to a specified 34 degrees centigrade. This brings into question whether the thermometer was working properly, or ever checked.

Or when dry gas standard is used to calibrate the machine and to obtain proper results, whether the barometric pressure measuring device of the machine was checked as well.

If the prosecution can’t show that a BAC breath test machine was inspected correctly, a good DWI defense attorney will raise this to the Court and try to use it to your advantage.

Who is Administering the Breath Test and How is it Being Administered?

The person who administers the breath test has to have proper qualifications. This is not done by a lay person, but by one who has received proper training.

Along the same lines, even if the person is properly qualified, did that person properly administer the test by following specific protocols? Such protocols include following the machine’s manual and also additional regulations set by the State of Missouri.

If there are any problems or questionable evidence with regard to who administered your breath test — and how — it’s your defense attorney’s job to investigate and use this to your advantage.

The 15 Minute Observation Rule

Before one is asked to blow into a machine to measure their blood alcohol content, there has to be a 15 minute observation period. The 15 minute observation period is put in place to ensure reliability of the results.

There have to be 15 minutes of direct observation. During these 15 minutes, the person who is going to be tested must not eat, drink, smoke, vomit, or regurgitate (burp any contents into your mouth). Any one of those can increase the reading of the machine.

Often officers who are supposed to observe a person for 15 minutes straight do not do it properly. What if that person has a severe case of indigestion and brings up the content of his stomach up to his mouth and contaminates his mouth with alcohol? If sufficient time has not passed to allow the mouth contamination to dissipate, that can very well result in a higher reading.

Your defense attorney should review the evidence, reports, audio/video recordings, and also ask you detailed questions about whether the observation rule was followed in your case. If not, you may have a defense to the test results.

Additional Potential Defenses for Breath Tests

There are many other areas where a breath test can be challenged.

Partition ratios of blood to breath, lack of slope detector of the breath machine, margins of error, dental work, tongue studs and mouth jewelry, GERD, diabetes, lung conditions, machines that measures substances other than alcohol (ethanol) that lead to higher readings, whether the alcohol in the system reached equilibrium, breath machines that may have been subject to radio frequency interference, etc.

The above list is not exhaustive. Depending on the facts of the case other defenses may be available.

The only way to determine whether any potential defense exists is to actually roll up the sleeves and get to work on finding them.

And that is exactly what I will do.

How do they convict of DWI for alcohol?

Two Ways to Convict of DWI for Alcohol

In Missouri there are two separate and distinct ways to convict a person for driving under the influence of alcohol. So, what are those two situations? How are they different? I will explain.

Driving While Intoxicated –

Missouri law simply states that one who is under the influence of alcohol or drugs is not allowed to drive a vehicle. It is proven by showing the person violated driving laws, exhibited signs of intoxication, and was deemed too impaired to drive a vehicle as safely as a person who was not impaired.

The police officer may include in his report the driver veered or committed other traffic violations, and upon further inspection, the driver’s breath emitted odor of alcoholic beverage, eyes were red watery and bloodshot, speech was slurred and slow, the driver performed poorly on the field sobriety tests, had balance issues, unsteady gait, poor timing, presence of nystagmus, etc.

At some point the officer deems the driver to be under the influence of alcohol or drugs and concludes that the driver is too impaired to safely drive the vehicle. The driver is then placed under formal arrest and transported to the police station, hospital, or some other area to submit to a “chemical test.”

Blood Alcohol Content (BAC) is .08 or Higher ­—

To show a driver violated this law, the government has to prove that at the time of driving the person’s BAC was .08 or higher. This charge is concerned with the alcohol level of one’s blood, and it does not delve into the nature of driving or the level of impairment.

One’s BAC can be measured through his or her breath by way of a breathalyzer, or it can be determined or tested through their blood. At times the less reliable urine sample may be the only option. After testing one’s breath or blood (or urine), if one’s BAC is .08 or higher, that driver can be charged with violating this section.

Numerous Defenses to Both Charges

Even if you are charged with either of these vehicle code violations, there are numerous defenses that may be applicable to each section. A methodical and thorough review of every aspect of the case can bring to light the various potentially applicable defenses. An excellent DWI attorney will intently search for, discover, develop, and present applicable defenses to driving under the influence.

Why Do Lawyers Tell You to Keep Quiet?

Ever wonder why lawyers advise their clients to keep quiet and to refrain from volunteering information? Why is that? Why should we heed that advice?

When we are approached by police officers, either they already have “probable cause” to arrest us or they don’t. If they had sufficient reasons to arrest, then they would. If they are not arresting us, it is because they don’t yet have sufficient reasons or “probable cause.”

If we volunteer information, we may say things that incriminate us. We may unwittingly give law enforcement officers “probable cause” to arrest us. However, if we remain silent and refuse to volunteer information, the officers have to gain that information from other means if at all possible.

Miranda Warnings

It’s not by mistake that the Miranda warnings start with:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law.”

 The Miranda warnings are required after a person has been arrested. They are also required when “custodial interrogation” takes place. “Custodial interrogation” can be a gray area. “Custodial” refers to those circumstances when we are “not free to leave” or walk away or to terminate the encounter with the officers. “Interrogation” takes place when the questioning elicits incriminating evidence.

How Does this Play Out in a DWI Setting?

Let’s assume the officer has “reasonable suspicion” to pull us over because she observed our brake lights are not working. At that point, without additional information, she doesn’t have probable cause to arrest us for driving under the influence. How does this situation go from a fix­-it ticket to probable cause to arrest?

The officer starts asking questions like where we are heading, where we are coming from, what we’ve had to drink, when, how much, etc. She may notice odor of alcoholic beverage on our breath, hear slurred speech, and see bloodshot eyes. At that point, she may ask us to submit to certain field sobriety tests and, depending on what ensues, there may be probable cause for her to arrest us.

But if we keep quiet and not volunteer anything (other than license, insurance, and registration), we limit the flow of information and we do not contribute to her having probable cause to place us under arrest.

By keeping our mouths, shut we refrain from potentially incriminating ourselves and also from rendering possible defenses inapplicable. This is why attorneys tell their clients to keep quiet.

Who is Widmark and What is his Equation?

Erik Widmark was a Swedish researcher and a pioneer in researching ethanol (or alcohol) in the body. His work has been and remains very influential in forensic alcohol analysis.

Widmark researched how ethanol behaves in the body. He studied how after consumption, ethanol is absorbed, distributed, and eliminated. His work helped to show the level of alcohol in the body from consumption to elimination based on certain factors.

Widmark’s Formula

Widmark’s formula states that one’s blood alcohol content (BAC) is equal to the number of ounces of alcohol consumed, multiplied by a constant — for men by 3.75 and for women by 4.7 — and then divided by that person’s weight. In order to determine BAC at different time intervals, he chose a constant rate of elimination “B” (.017%) and time “T”.

Here’s a visual depiction of the formula:

BAC =

(ounces of alcohol) x (men 3.75, women 4.7) ­ B (elimination rate .017%) T (time/hours)

_____________________________________________________

Weight

Example 1: A 130 pound woman downs 3 tequila shots.

What would her maximum BAC be, assuming all the alcohol was absorbed?

3 x 4.7 = 14.1

14.1 / 130 = .10 BAC

Example 2: A 210 pound man downs a 6 pack of beer.

What would his maximum BAC be, assuming all the alcohol was absorbed?

6 x 3.75 = 22.5

22.5 / 210 = .10 BAC

How Fast Does Your Blood Alcohol Level Start to Go Down?

Widmark’s formula can be employed to determine the BAC after passage of certain amount of time by utilizing the B and T factors of his equation.

According to Widmark’s formula, in the above two examples, both are over the .08 limit. If each waits about an hour and a half, the alcohol in their system would be eliminated by approximately .02 per hour, or .03 in about 90 minutes, and the BAC of each should drop below .08.

.10 ­- B (.017%) T (1.5) ⇒ .10 ­- .0255 ⇒ .07 BAC (after 90 minutes)

So, Widmark’s formula is a way to determine a person’s blood alcohol level at different time intervals once we learn their gender, weight, and their drinking pattern.

Would I Guarantee Results in Your DWI Case?

No — and here is why.

I cannot guarantee that which I cannot control. Simple.

In order for a certain “result” to take place, numerous variables have to come together. No person has control over those variables. I know I cannot control the actions of the police, district attorney, judge, jury, client, witnesses, investigators, experts, etc., to reach a certain result. How can I possibly, in good conscience, guarantee that which is dependent on factors outside my control? I can’t control the results, but I can control the process.

We have control over the process in that we have choices along the way. We can choose to do A, B, C, etc., and help to bring about the desired results. I have faith that if I give my absolute best effort in everything I do, I give myself the best chance of obtaining the best results. So, the answer for me is not to guarantee the results, as I have no control over them, but to give the process my best, as that is the only thing over which I have control.

The way I see it, I have a duty to myself to do the best that I can in everything I pursue. This approach provides my clients with the best chances to gain the desired results.

How Quickly Does Alcohol Affect Ability To Drive?

A small portion of the alcohol enters the blood stream through the lining of the mouth and then the stomach. As the contents of the stomach are emptied, the majority of the alcohol enters the blood stream through the small intestine. The alcohol gets absorbed into the system, but it is not yet uniform throughout the body.

Some time after drinking has ceased the alcohol gets fully absorbed in the bloodstream and reaches equilibrium. That means the bloods’ alcohol content is uniform throughout the body. Until that happens, any sample taken is not reliable. The bloods’ alcohol content must be the same or uniform regardless of whether it’s located in our pinky finger or our big toe.

Pattern of drinking is crucial to this defense as it will indicate whether or not the alcohol consumed was fully absorbed.

Once alcohol is distributed in the blood stream, it will start being eliminated from the system at a somewhat constant rate of .02 per hour.

Test Above .08

If you took a test that resulted in a BAC reading of .08 or more (blood, breath, or urine), we must request an administrative hearing within 15 days of the date you were served notice of the suspension. This is usually served at the time of arrest, and includes a temporary license. If a hearing isn’t requested within 15 days, your driving privilege will be suspended. If you requested a hearing in time, an administrative hearing will then take place in front of a hearing officer where witnesses can be called to testify and be examined. They can be the officers, expert witnesses, passengers, etc. There is no jury. The hearing officer not only hears the matter, but also adjudicates it. This is a civil case, so the burden of proof in this administrative hearing is not as stringent as what is required in criminal court – in other words, weaker evidence can be used to decide what will happen to your license than is needed to convict you of a criminal DWI charge. Once the evidence has been presented, the hearing officer will take it under advisement and make a ruling usually within seven to 10 days.

Blood Alcohol Testing

“Whole Blood”, Plasma, or Serum
“Whole Blood” is exactly as it sounds – whole blood. It contains red and white blood cells, it has not been clotted, and has not had its cells separated. Blood that has been clotted results in serum, and blood that has its cells separated results in plasma. Blood tests are to be done with “whole blood” samples, and not the resulting liquids of serum or plasma. Testing of serum or plasma of that blood sample will result in a higher BAC reading. 

In a given blood sample, the “whole blood” version of that sample will contain less water than the serum or plasma versions of that sample. Because of the difference in water content, and the solubility of alcohol in water, the tests of the more water filled serum or plasma will yield a higher BAC reading than the test of the less water filled (and red and white cell filled), “whole blood”.

If serum or plasma have been tested, then the results must be converted to reflect the lower BAC of “whole blood”. Though there is a range, the average ratio of serum or plasma to “whole blood” is 1.16 : 1.

Labs generally use gas chromatography to test “whole blood” in order to determine the blood’s alcohol content. Serum and plasma immunoassay testing might take place in hospitals or clinical labs, but they might not relay that information in their reports. If it is not known, learned, or discovered what has been tested, then a higher reading of serum or plasma may be unfairly imputed to a driver who may not had violated any laws.

Blood Alcohol Testing

“Whole Blood”, Plasma, or Serum
“Whole Blood” is exactly as it sounds – whole blood. It contains red and white blood cells, it has not been clotted, and has not had its cells separated. Blood that has been clotted results in serum, and blood that has its cells separated results in plasma. Blood tests are to be done with “whole blood” samples, and not the resulting liquids of serum or plasma. Testing of serum or plasma of that blood sample will result in a higher BAC reading. 

In a given blood sample, the “whole blood” version of that sample will contain less water than the serum or plasma versions of that sample. Because of the difference in water content, and the solubility of alcohol in water, the tests of the more water filled serum or plasma will yield a higher BAC reading than the test of the less water filled (and red and white cell filled), “whole blood”.

If serum or plasma have been tested, then the results must be converted to reflect the lower BAC of “whole blood”. Though there is a range, the average ratio of serum or plasma to “whole blood” is 1.16 : 1.

Labs generally use gas chromatography to test “whole blood” in order to determine the blood’s alcohol content. Serum and plasma immunoassay testing might take place in hospitals or clinical labs, but they might not relay that information in their reports. If it is not known, learned, or discovered what has been tested, then a higher reading of serum or plasma may be unfairly imputed to a driver who may not had violated any laws.

Blood Fermentation Defense

When the required procedure is not followed, fermentation can take place, and that leads to a higher blood alcohol concentration reading. Fermentation is the process by which alcohol is naturally produced. I will provide a bit more detail.

Assuming a qualified phlebotomist has extracted blood from a vein, that blood sample will be collected in a vial. In order to slow down the natural fermentation process, that vial must contain sufficient amounts of a common preservative called sodium fluoride (along with anti-coagulant potassium oxalate).

If the preservative is missing or is insufficient, or had not been properly mixed with the blood, that fermentation process will not be slowed.

Furthermore, if the blood is not going to be tested within a day, then it must be properly refrigerated or frozen in order to slow down the natural alcohol producing fermentation process. If it is not refrigerated or frozen, then the fermentation process will continue to increase the blood’s alcohol content. The results are no longer reliable.

The failure to follow the scientifically sound and self-imposed procedures will produce inaccurately higher BAC results, and those inaccurately high results must not be imputed to the driver. Otherwise, the driver, who may be innocent of criminal charges, can be wrongly convicted of DWI/drunk driving or other alcohol-related offenses.

Your DWI In Court

Court case and driver license hearing.

When charged with DWI in Missouri, there will be two forums in which defense or representation is required. They are distinct actions, yet interrelated. I will explain.

A DWI charge in Missouri requires a court case. That is where arraignments, preliminary hearings, various motions, plea bargaining, jury trials, sentencing, appeals, writs, etc., take place.

The Court, independent of the Department of Revenue (driver license), can set the conditions of release, probation, classes, suspensions, fines, penalties, jail time, diversions, etc.

Refused A Test?

If you refused a test, or a second test, we must file a petition.
A Petition for Review in the Circuit Court of the county in which you were arrested must be filed within 30 days of the date you were served notice of the revocation. This is usually served at the time of arrest, and includes a temporary license.

Note that your license will be revoked 15 days after you were served notice of the revocation. 

The sooner we file your Petition for Review, the better. We will also file a Motion asking the Judge to Stay the revocation of your license until after your license hearing, so you can still drive while your hearing is pending. If a hearing was requested in tiem, an hearing will then take place in front of a Judge where witnesses can be called to testify and be examined. They can be the officers, expert witnesses, passengers, etc. There is no jury. This is a civil case, so the burden of proof in this hearing is not as stringent as what is required in criminal court- in other words, weaker evidence can be used to decide what will happen to your license than is needed to convict you of a criminal DWI charge. Once the evidence has been presented, the Judge will make her ruling.

Suspended or Revoked?

How long is license suspension or revocation?
The length of any suspension depends on various factors such as whether there was a refusal to submit to a chemical test, the number of previous charges, etc. If the driver requests a license hearing in time, generally speaking, the hearing officer will decide whether the officer had reasonable grounds to believe you were driving the vehicle, whether the arrest was proper, and whether the driver’s blood alcohol content was .08 or more. If there was no chemical test, then the Judge has to decide whether the officer had reasonable grounds to believe you were driving the vehicle, whether the arrest was proper, and the refusal issue (i.e., whether the driver actually refused to submit to a post-arrest chemical test).

Rising Blood Alcohol Defense

What is the Rising Blood Alcohol Defense?
You may have heard someone was acquitted in a drunk driving /DWI case because his blood alcohol was on the rise. What exactly does that mean? What does that defense entail?

When alcohol is consumed, it takes time for it to enter the bloodstream. Impairment is not instant. Alcohol must reach the brain before there are any mental and ensuing physical impairments that ultimately affect operating a vehicle.

In Missouri, the charge of driving while intoxicated requires the government to prove impairment, and/or BAC of .08 or above, at the time of driving and NOT at the time of testing. One has to be under the influence, or be .08 or above, at the time of operating their vehicle and not at a later time when a chemical test is being performed.

Rising blood alcohol defense can be persuasive when a person has been stopped a short time after drinking. It takes time for alcohol to enter the bloodstream and to increase the BAC. While the blood alcohol concentration is on the rise, expert testimony can very well place one’s BAC lower than .08 at the time of driving.

Of course, much of this defense depends on various factors and no two situations are the same. But, generally speaking, if one’s blood alcohol level is on the rise at the time of driving, this defense can be quite effective.