In our roles as Michigan DUI lawyers, my team and I answer a lot of questions, and we ask a lot, as well. One of the most important we always have is about a person’s BAC (bodily alcohol content) results. It is, without exception, one of the first things we ask any potential client with whom we speak, and is usually the very first thing that every prosecutor or Judge wants to know about anyone facing a DUI charge. As a general rule, a person’s BAC result will have a greater impact on his or her case – at every stage – than any other single factor.
This goes well beyond the difference between a regular DUI charge (technically, the offense is called “OWI,” or “Operating While Intoxicated,” the actual legal term in Michigan for what everyone just refers to as “DUI”), and the more serious “super-drunk” or “High BAC” charge of Operating While Intoxicated with a BAC of .17 or more. Ever since the introduction of chemical testing, a person’s BAC result has been viewed as the measure of how drunk he or she was at the time of his or her arrest. Of course, a lower BAC result is always better, because, no matter what, it just never looks good to have been really, really drunk.
In the real world, things just tend to get “worse” the higher a person’s BAC result measures. For those who deal with DUI cases all the time, a BAC result communicates as much information about a person’s level of intoxication as a temperature forecast does to someone on vacation who wants to know if it will be a good day to go to the beach. Knowing it’s going to be 66 (or 86) degrees tomorrow is as telling to a hopeful beachgoer as the knowledge that a person’s breath or blood test result was .10 (or .22) when he or she was arrested is to the anyone involved in his or her DUI case.
Objectively speaking, the most obvious “tell” from a person’s BAC result is how drunk he or she was (or wasn’t). One constant in the DUI world is that many people will downplay their level of intoxication at the time of their arrest, even when their BAC score clearly indicates otherwise. This is actually normal behavior, but it’s also something my team and I have to work on with our clients right out of the gate, before they say something in court that will work against them.
That happens, for example, when, despite having tested out with a BAC of 1 and 1/2 (or more) times the legal limit of .08 (meaning .12 or above), a person will say they weren’t “that bad.” In fact, to the extent anyone over the legal limit really wasn’t that bad, it means that he or she has developed a tolerance to alcohol. From the court’s point of view, any such tolerance will be considered unhealthy, and the person will be seen as a risky and potentially “big” drinker.
Even if a person could prove that’a not true, and that he or she doesn’t drink that often, or not that much, the fact that he or she consumed enough alcohol to have a BAC one and a half (or more) times the legal limit of .08, didn’t pass out, and still managed to drive, means that his or her “natural” tolerance to alcohol is a DUI risk of sorts – and certainly more than it is for any person who simply doesn’t drink at all.
It is, as noted above, a natural inclination for a person to become defensive about his or her level of intoxication while driving, which is undoubtedly why few lawyers are as direct about it as we’re being here, but the simple fact is that anyone who hires a lawyer for an OWI case needs an attorney who will actually make things better for him or her, and not one who will just wimp out and agree with everything they say.
Accordingly, any lawyer who would spinelessly follow the old saying that “the customer is always right” and NOT explain the implications of a higher BAC result is really doing his or her client a disservice. Let me put it this way:
Just about everyone who gets arrested for a DUI will say that he or she wasn’t that bad. That’s just the way things work; it’s human nature. Most people are good at heart, and find themselves embarrassed by the the whole situation. In that regard, pretty much nobody is going to casually say something like, “Man, I was freakin’ wasted!”
That’s almost like admitting that one knew he or she was really drunk, and therefore also knew (or should have known) that they were unable to drive safely, but chose to do so anyway.
That’s not how people react or think in the real world.
However, while It’s natural for a person to try and put what he or she thinks is a better spin on their DUI and the circumstances surrounding it by downplaying his or her level of intoxication, doing so is actually counter-productive, for the reason we noted above.
What this means, really, is that the best way to explain one’s behavior is actually counter-intuitive. This is kind of like the old advice to just NOT SCRATCH certain skin irritations that itch, because doing so will only make them itch MORE, and make things worse.
As it turns out, though, a lot of people really do think they weren’t that bad, precisely because the consumption of alcohol impairs a person’s ability to self-assess his or her own level of intoxication.
In other words, in many cases, it’s not that people downplay their level of intoxication because they’re trying to BS anyone, but rather because they really didn’t feel that bad – at least at the time.
This makes sense, when you think about it. There aren’t many among us who would knowingly over-indulge, go to our cars, and figure, “well, I’m really drunk and I’m certainly an increased risk to hurt someone, but I’m going to drive home anyway.”
Instead, people engage in a kind of impaired rationalization about how they feel, and really do think that they’re “okay” to drive. Ultimately, it’s not any kind of moral failing for a person to have thought he or she wasn’t too drunk to drive; it’s a mistake in judgment, more than anything else (at least in 1st offense cases), and, as I’ve tried to make clear, that’s largely natural.
However, it is completely unhelpful to stick with the “I didn’t think I was that bad” kind of story once a person is facing a DUI charge because, no matter what, a person’s BAC result is THE primary measure the court system uses to calculate how drunk (or not) he or she was at the time of their arrest, and also to determine if he or she is a big drinker, or otherwise has a “risky” tolerance to alcohol.
The “kicker,” of course, is that by the time this becomes relevant, it’s too late to change anything. A person’s BAC at the time of his or her DUI arrest is a matter of record, so whatever it was – it was, and we just have to deal with it.
Legally speaking, there are some things that can affect the reliability of a BAC score, but anything more than a mention of them goes beyond the scope of this article.
As a matter of course, one of the first things the lawyer needs to do in every DUI case is get and examine the evidence to make sure it was collected legally, that any chemical tests were administered properly, and, most importantly, that the results are reliable.
If there is any basis to challenge the BAC results, or how the chemical evidence was obtained or analyzed, then it must be pursued.
The bottom line, however, is that, in most cases, such inquiries will not turn up police or testing errors big enough to result in the exclusion of evidence or the outright dismissal of charges. This means that in the overwhelming majority of DUI cases that wind up in court, everyone in the system is going to look at a person’s BAC result as an indicator of how drunk he or she really was.
That’s just how things work in DUI cases.
Think of it this way: If you’ve ever attended any function where you’ve had to wear a “Hello, my name is ____” sticker where you have to write in your own name, it’s much the same when walking into court for a DUI charge, except it’s more like you’re wearing a “Hello, my name is Miss .14” or “Hello, my name is Mister .22” sticker.
In other words, in a DUI case, you aren’t so much Mr. John Doe, or Ms. Jane Doe, as you are Miss .14, or Mister .22.
The best way to deal with person’s BAC result will, of course, vary from case to case. That’s not a cop-out response, but I won’t say more here, because I don’t want to give away any secrets. The reader simply needs to understand that things need to be properly “handled.”
Consider these 2 hypothetical situations:
First, imagine you hear about a friend’s wife who was pulled over for speeding, and then arrested for a DUI. You learn that her BAC was .18, over the threshold for a “High BAC” charge, and also more than 2 times the legal limit.
You would automatically draw a couple of conclusions about her:
1. She was really drunk, and
2. She must be a pretty big drinker to blow that high.
Second, image the story goes like this, instead: She was at a party where she consumed some triple-strength Long Island Iced Teas (the kind that don’t taste like booze so you can’t tell how strong they are), and got really hammered. She was so smashed that she staggered outside in a daze, threw up, and then, just wanting to go home, got into her car and wound up crashing into a fire hydrant at the end of the block.
When the police got there, she was passed out behind the wheel (although uninjured), but was nevertheless so drunk that they had to take her to the hospital just to be safe, where it was learned her BAC was .18.
Given those facts, you’d be more likely to believe that the woman wasn’t a big drinker, and that she not only couldn’t “handle” her liquor, she couldn’t hold it down, either, and fully acted the part of someone who isn’t used to alcohol and was out of their head.
Sometimes, in a DUI case, we can take what seems like a really bad circumstance and use it to the client’s advantage. If I had a choice between the 2 situations referenced above, I’d much rather have to defend the second one, because, if presented properly, a good argument can be made that the woman obviously hasn’t developed much of a tolerance to alcohol.
In which scenario did the wife with the .18 seem to be more intoxicated – the second, where she couldn’t even avoid a fire hydrant, or first, where the only reason she got caught was by flying by too fast on the police radar?
DUI situations basically call for the lawyer to follow the the old advice that, “when life hands you lemons, make lemonade.”
For everything else that can be said about BAC results, the simple point I wanted to get across in this article is that they generally create a strong first impression about a person charged with a DUI offense, and are used as the “measure” about his or her level of intoxication, and whether or not he or she seems like a big drinker, meaning someone who has developed a tolerance to alcohol, or is the proverbial “lightweight.”
In a DUI case, being a “lightweight” is ALWAYS better.
If you’re facing a DUI charge and looking for a lawyer, be a savvy consumer and read around. Pay attention to how different lawyers explain DUI cases, and how they explain their various approaches to them.
When you’ve done enough of that, start checking around. You can learn a lot by speaking with a live person.
If your case is pending here, in the Greater-Detroit area, meaning anywhere in Wayne, Oakland, Macomb, Lapeer, Livingston, St. Clair or Washtenaw Counties, give us a ring, as well. All of our consultations are free, confidential, and done over the phone, right when you call.
My team and I are very friendly people who will be glad to answer your questions, explain things, and even compare notes with anything some other lawyer has told you.
We can be reached Monday through Friday, from 8:30 a.m., at either 248-986-9700, or 587-465-1980.