Hi. I'm Charlie Roadman, Austin criminal defense attorney. And today I want to go over the timeline of a DWI arrest as it relates to blood alcohol content. Okay? I want to show you the times when the prosecution, the police get your blood alcohol content.

First, you've got the stop. Okay? Or the first police contact. Okay? They either pull you over or you're already pulled over, but you're operating the car, or there's been some sort of crash, or something like that, so the police have contact with you. After that, there's generally a brief little conversation for the police officer, where are you going, can I see your ID, that type of thing. And then, if they suspect that you've been drinking or are intoxicated, the DWI investigation begins. After that, they're going to ask you to do field sobriety tests. That's the walk and turn, the one leg stand, the eye test, the horizontal gaze nystagmus test. Anyway, they're going to go through that process or try to get you to go through that process.

At the end of it, typically in Travis County here, they'll offer you a portable breath test. Okay? We refer to that as the PBT. Not all agencies do it, not all officers do it, but they will frequently do this handheld portable breath test. Now, they will tell you that this isn't going to be considered in your case, but it kind of will. The prosecutors will see it. The judge can see it. The only people that don't get to see it are the jury, if there's a jury trial. So, they're a little deceptive about this test. But it's true that it doesn't count towards the level of offense. Okay? They can't use that to say it's a class A, be it 0.15 or above, but the prosecutors will definitely see the result of this PBT.

Now, after that, they're going to arrest you. And they're going to arrest you, basically, if you blow anything higher than a 0.05. Okay? That's a general policy right now, which doesn't even seem fair, right, if you blow below the limit, but that is the policy currently, the APD, and the reason is you could be intoxicated on other things in addition to the alcohol, some drugs, or you've just lost the normal use of your mental or physical faculties even at a 0.05. Anyway, I could talk about that for a long time, but we're going to keep going here.

The next thing that happens is a drive to the station, and that can be anywhere from 10 minutes to 45 minutes. And then there's voluntary breath or blood. Okay? Generally, they'll ask you a little bit earlier, but basically there's where you decide are you going to voluntarily blow or voluntarily give blood? If you refuse, okay, then they're going to get a warrant. And they do that 90% of the time now, all days. Okay? Everyone's heard of no refusal weekend. It's basically no refusal anytime now. There's always a judge available to sign a warrant. They don't do it a hundred percent of the time for various reasons, but 90% of the time they're going to get a warrant, and then they'll do the blood draw. Okay. So, the voluntary breath or blood and the blood draw there at the end, those are the ones that will count towards the level of offense, and those would be the ones that a jury hears about if you go to the jury. Okay.

I do want to talk about the BAC and reverse extrapolation, or they sometimes call it retrograde extrapolation. And that means where the time, right, when you're driving is when it's illegal to be over the limit. Okay. It's not illegal to be over the limit when you're at the police station 45 minutes or an hour later, so the law, or the prosecutors, or the judge, or the jury has to find that you were... Or has to believe that you were intoxicated at the time you're driving. Let's look at this curve here, so if you've got a 0.08 there and 0.15 there. Okay. If you're driving here, okay, by the time you give voluntary breath or blood, or they take your blood, it could be up there. Meaning you're driving at 0.07 and they take your blood, but it shows up as a 0.11, okay, because of the time that it took the alcohol... Or during the time that you're between driving and getting the breath or blood, the alcohol's absorbing into your system. Okay. Now, this is in a scenario where you're going up. Okay. The alcohol level is going up.

You have another scenario where you're driving at say 0.14, but they take your breath of blood here. Okay. And it's going to be much higher than when you were driving. Now, the prosecutors are more likely to argue the other way, that you're coming down, so you're driving up high, but the breath or their blood is lower than where you were when you were driving. Or here, you're driving here and the breath or blood is down there. The point is really that there's no way for anybody to determine exactly the level you were when you were driving. Okay. And the only real scenario that it's equal is in this scenario, where you're driving and you're just right at the level and the breath of blood is not far away from when you were driving in terms of it's just coming down a little bit.

Now, the prosecutor's going to argue this curve is too steep. Okay. And that it should be a lot flatter, but really nobody knows how you process alcohol, so this is just sort of to show you some of the issues with blood alcohol content and the DWI case. I hope this helps. If you have any questions, just give us a call.