You think you are safe to drive a few hours after imbibing a

[Alan K]

A new case was just reported from the Massachusetts Supreme Judicial Court as to whether or not a person could be found to have a blood test admitted that could result in any other reading than what it was when taken. And that one could not be found guilty of driving under the influence of alcohol on that test if it showed a legal level. After all, most of us are aware that in a time period of close to five hours of the last drink, we would certainly demand a blood alcohol level test and have all probably felt fairly safe in that after over four hours of consuming a few beers, that blood test if charged with DWI by police. This is your right under Massachusetts law, and all that you would get is a reading far lower than when you first imbibed and that was what you would expect to use as exoneration or best evidence at a trial.

In a case of first impression, the Massachusetts Supreme Judicial Court just recently decided that “Retrograde Extrapolation” blood analysis could be offered in evidence when given by a credible expert witness (in this case a doctor/toxicologist).

I take Retrograde Extrapolation measurements to mean any evidence mathematically measured in present or real time, and using that measure to arrive at a measurement at a given time in the past based upon a measurement formula. O.K. you scientific people out there can no doubt arrive at a different definition, but I think you know what I mean, so lets get into the interesting part of the case. The facts begin, as presented in Massachusetts Lawyer’s Weekly, as follows:
(but summarized by me a bit)

In April of 1997, Bob, the defendant in this case met some friends at a restaurant and lounge on Route 44 in Plymouth County They had consumed four to six beers in a two hour period.

At 6:30 P.M. Bob left the restaurant and drove down Route 44. He was speeding at the time and crashed into a victim’s car, which was stalled on the roadway. The victim died as a result of the injuries.

Two Plymouth LEO’s arrived at the scene and spoke with Bob. At the trial, one officer testified that Bob smelled of beer, used slurred speech and was unsteady on his feet.
(this was the standard litany of LEO’s dictated by evidentiary rules in an old DWI case)

The LEO’s read the Miranda warnings, which Bob indicated that he understood, and then admitted that he had a few beers.

Bob failed field sobriety tests. Later that night, Bob’s attorney went to the police station.

Bob was released and went to a hospital with his attorney.

Sometime after 11PM hospital personnel performed a blood alcohol test at the attorney’s request.

The test showed a blood alcohol level of .091.

At trial, State’s witness, who was a doctor employed retrograde extrapolation to the results of that test and estimated that Bob’s blood alcohol level AT THE TIME OF THE COLLISION was between .099 and .148.

Bob got three to five years in prison and appealed.

The appeal was based upon alleged errors of the judge in admitting in the admission of the blood alcohol level as evidence and also for allowing the retrograde extrapolation evidence.

The Court found that the evidence of retrograde extrapolation was proper stating:

“Specifically (the expert) testified to the scientific principles of retrograde extrapolation, which , which is a mathematical calculation used to estimate a person’s blood alcohol level at a particular point in time by working backward from the time the blood alcohol test was taken, taking into consideration rates of both absorption and excretion.” (this was Court’s definition)

The Court then found that retrograde extrapolation was accepted by “numerous people throughout the country”

Defense argued that standards of a prior case Daubert/Lanigan precluded such a finding.

The Court held that the trial judge did not err because the evidence offered was sufficiently reliable

Other failed arguments of defense centered around who the hospital was “agent” for at the time of the initial blood test. The defense never indicated to hospital personnel that they were working for the defendant (Bob).

So my friends here is a new one for forensic science (in this state) which will join DNA and all the other improved science techniques to either help you or hurt you.

I can hear the moans and groans of the readers not happy with this decision.

After all it began for Bob with the “Unhappy Hour” (credit Massachusetts Lawyers weekly.

Bottom line is the old standard advise by a lawyer to his client to seek a blood test if your sure you might pass a blood alcohol test if you took it must be tempered by this decision.