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View Diary: Supremes resist efforts to force blood draws from suspected drunk drivers (21 comments)

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  •  I was on a DUI jury once (1+ / 0-)
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    on the cusp

    and this is exactly what the prosecutor did: calculate back from the time of measurement to the time of driving and infer the defendant's BAC at the time of driving.

    •  It is difficult to accept that such a calculation (1+ / 0-)
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      can accurrately cover everyone with different metabolic rates, bodymass index, etc.

      •  Which everyone acknowledged (2+ / 0-)
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        ER Doc, LakeSuperior


        While experts can work backwards from the BAC at the time the sample was taken to determine the BAC at the time of the alleged offense, longer intervals may raise questions about the accuracy of the calculation.
        Roberts concurrence:
        And that second-best evidence may prove useless. When experts have worked backwards to identify a defendant’s BAC at the time he was driving, defense attorneys have objected to that evidence, courts have at times rejected it, and juries may be suspicious of it. See, e.g., 1 D. Nichols & F. Whited, Drinking/Driving Litigation §2:9, pp. 2–130 to 2–137 (2d ed. 2006) (noting counsel objections to such evidence); State v. Eighth Judicial District Court, 127 Nev. _, 267 P. 3d 777 (2011) (affirming rejection of such evidence); L. Taylor & S. Oberman, Drunk Driving Defense §6.03 (7th ed. 2010) (describing ways to undermine such evidence before a jury).
        Because the Court’s position is likely to result in delay in obtaining BAC evidence, it also increases the likelihood that prosecutors will be forced to estimate the amount of alcohol in a defendant’s bloodstream using BAC numbers obtained hours later. In practice, this backwards extrapolation is likely to devolve into a battle of the experts, as each side seeks to show that stale evidence supports its position. There is no need for this outcome. Police facing inevitable destruction situations need not forgo collecting the most accurate available evidence simply because they might be able to use an expert witness and less persuasive evidence to approximate what they lost.

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