Michigan Criminal Defense Lawyer Blog
As a Lawyer who is in Court for DUI cases multiple times every week, I read more Breathalyzer results than you can imagine. This article will focus on a very important, but often-overlooked aspect of what’s called the “BAC” in a DUI case. This is NOT an article which will discuss the theory of Breathalyzer accuracy and all that. Instead, this article will focus on how Breathalyzer results can and do affect every DUI case that makes it into Court.
Earlier this week, I handled a DUI for a fellow who had been stopped for swerving across the road. After his Arrest, he was taken to the Police Station and given a Breathalyzer test using the Datamaster machine. His test results were .21 and .22. We’ll get back to his case, and the example it provides, later. If you are facing, or have had A DUI, then you have most likely met this machine. If not, you probably had your blood taken.
At the conclusion of the breath testing, the machine prints out a form and the person tested receives a copy. That copy is usually pink and looks like a big store receipt. It list details of the test, and the results are titled “BAC.” This stands for Bodily Alcohol Content.” Sometimes, people mistakenly refer to BAC as “Breath Alcohol Content,” or “Blood Alcohol Content.”
One of the questions any Lawyer who regularly handles DUI cases will quickly ask a prospective Client is something like “what was your BAC?” That BAC score is very important in determining the severity of a person’s case. In fact, that score often provides loads of information about a DUI case, and what’s likely to happen as a result.
For starters, the BAC is often used as a “wet thumb test” to make an on-the-spot determination if a person is a big drinker or not. Now I’m not saying that this is scientifically accurate, but I am saying that Cops, Prosecutors, and, most importantly, Judges, look at the BAC as a sort of barometer to determine if a person is a real lightweight, or a big drinker.
Let’s look at a few examples: If a person is arrested on a Thursday night for a DUI, and their BAC is .23, then the Judge (or Magistrate) who handles their Arraignment is going to know that their Bodily Alcohol Content was about 3 times the legal limit of .08. That means they were very, very drunk. On the other hand, if they weren’t very, very drunk then they are a hardcore drinker. A lightweight, newbie drinker could never get a BAC that high. In other words, a .23 BAC means a person is probably a big drinker, whether they were drunk out of their minds, or not.
This, in turn, leads the Judge to suspect a possible alcohol problem. Not that a person with a much lower BAC can’t have a problem, but in the larger picture, BAC result tend to get higher as a person’s drinking problem gets worse.
Say another person is arrested that same night, and has a BAC of .10. This means they were just over the legal limit. While that’s still not good, in the larger picture, they look, to the Court (and the Cops, and the Prosecutors, and the Probation agents, and the State, and anyone else who deals with this stuff regularly) like someone who is far less likely to have as serious a drinking problem as the person who blew a .23.
The critical difference in these 2 cases is that the first person with the .23 BAC may leave the Arraignment with Bond Conditions that include urine testing several times per week to make sure they are not drinking, while the person with the .10 may simply be told that, as a Condition of his or her Bond, they are not to consume any alcohol.
So back to my Client from earlier this week. This DUI was his first, although he had an MIP from some years before. I was able to get his charge reduced from OWI to what’s known as an “Impaired,” which saved him all kinds of consequences, including License Sanctions, Points, Fines and Costs, and Driver Responsibility Fees. On the day we went to Court for his Sentencing, he had been, as required by law, evaluated by the Probation Department for a possible drinking problem. This is done by administering a written alcohol use questionnaire, sometimes called a “screening” or a “PSI,” as part of a larger background workup, including a face-to-face interview with a Probation Officer.
Just to be clear, after anyone either pleads guilty to, or is found guilty of an alcohol related traffic offense, the law requires that, before the Judge can Sentence them, they undergo this evaluation and screening interview and test. The written test is scored, and that numerical score is used to determine whether the person has an alcohol problem, and, if so, how serious it is, or whether they have the potential do eventually develop an alcohol problem if they don’t already have one.
As a result of my (rather young) Client’s screening, it was determined that, although he did not have an existing, measurable alcohol problem, he had the potential to develop one. When we went in front of the Judge, who is one of the sharpest, no-nonsense Judges around, she read that report and told my Client straight out that he had a drinking problem, because from her point of view anyone with a BAC as high as his, which, she noted, was nearly 3 times the legal limit, was not an infrequent, social drinker. She told him that if he didn’t get a hold on this problem right away, it would only spiral out of control later.
Accordingly, he was sentenced to a year’s Probation, and required to attend a multi-week alcohol education class. Not a bad outcome from his point of view. In fact, he was just happy to be walking out the front door of the Courtroom, and not be taken through the back door in handcuffs.
My point here is just to use one example of how a BAC is used as a sort of lens with which to view a person in a DUI situation.
Another example drives the point home, I think.
When a person has had their License Revoked for multiple DUI’s and they later Appeal to get it back, they have to go through the Driver’s License Restoration process. Eventually, they’ll have a Hearing in front of a Secretary of State Driver Assessment and Appeal Division (DAAD) Hearing Officer. As that Hearing Officer looks over their Appeal, he or she has the State’s official information about their prior DUI’s in front of them, including their BAC levels for each Arrest. Now, I can tell you as someone who specializes in License Restorations that the Hearing Officer is not in the SLIGHTEST interested in the person’s explanation of their BAC. They take that number as gold. The BAC is the BAC, and the higher it was, the drunker they were and the more severe their drinking problem appears, period.
When Lawyers talk about their DUI cases, they often talk about them in terms of the BAC. When Police Officers talk about those they arrested, they talk about the driver’s BAC. The reason for this is exactly what I mentioned at the outset of this article; the BAC is essentially a barometer for determining how drunk a person was, and, correspondingly, how big a drinker they are.
In fact, in Macomb County, the County Prosecutor’s Office has a policy of not allowing any Plea Bargains to a reduced charge if the BAC is .18 or higher. Fortunately, most DUI cases are local, and handled by City or Township Prosecutors rather than County Prosecutors. All DUI cases involving the State Police are handled, however, by the County Prosecutor for the County in which the Arrest was made.
The bottom line here is that the higher the BAC, the more serious things are. In my experience, BAC results can roughly be described as follows:
Low = .08 to .12 or .13
Medium = .13 to .15 or .16
High = .16 to .20
Very High = .20 and above.
In October of this year, Michigan will have a new “Superdrunk” law in effect which requires “high BAC” cases (those with BAC results of .17 or above) to impose additional penalties, including the mandatory installation of an ignition interlock unit in any vehicle driven by the offender. For more information on that, read my article about “High BAC or Superdrunk” cases.
Anyone looking facing a DUI should not only be concerned about their BAC, but should also make sure any Lawyer they consider hiring is likewise appropriately concerned about it. Make no mistake, it’s a number that you’ll remember.