Rising BAC

In Mississippi it is against the law to have a blood-alcohol concentration (BAC) over .08 when you are driving.  WHEN you are DRIVING.  Not WHEN you are TESTED.  It can often take more than an hour after you are stopped before you are tested.  It almost goes without saying that your BAC will be different when you are tested than when you were driving.  The question then becomes whether your BAC was falling at the time of the test, indicating that you were way over the limit while you were driving, or rising, indicating that it might have been lower than the legal limit while you were driving.

As you know, alcohol is absorbed by your body through your stomach and small intestine, and it doesn’t happen immediately.  And everyone is different when it comes to alcohol absorption, depending on size, sex, body fat, etc.  In general, and depending on how much alcohol and food is consumed, and how fast you consumed them, it takes between 30 minutes and 3 hours for alcohol to be absorbed into your system.  So when someone comes to see me with a BAC of anywhere from .08 to .11, or in that range, I always analyze the timeframe of the stop, and other factors that may support a rising BAC defense.

This shouldn’t amaze you, but blood alcohol content, or blood alcohol concentration (BAC) is a measure of how much alcohol is in your blood.  It is usually expressed in terms of volume of ethanol per volume of blood, and is scientifically measured by calculating the ratio of ethanol to blood within your system.  Ethanol in your blood is a byproduct of the broken-down alcohol that you consume.  Therefore, if you have a BAC of .12, you have .12 grams of ethanol per 210 liters of breath, which equals .12 grams of ethanol per 100 milliliters of blood.  If your BAC  is above .08 and you are operating a vehicle in Mississippi, you are wrong.

How is BAC measured?

In practice, BAC is determined by breath, blood, saliva or urine testing.  Law enforcement will typically try to talk/coerce/influence you into taking one or more of these tests shortly after you are stopped.  Blood testing is the “gold standard” method to determine your BAC, but since it requires the drawing of your blood by a doctor or other qualified medical professional, most of the time your DUI will be based on a breath test.  Remember, you can refuse a breath test.  Also remember that you can get a DUI without a BAC, if the prosecution can prove by other means that you were operating a vehicle in Mississippi while under the influence of alcohol.

To be such a relatively small misdemeanor, a DUI on your record can have lifelong effects.  A DUI is never cut-and-dried.  Each case is factually different, with only one common theme: the prosecution wants a conviction on every one.  If you are arrested and charged with DUI, give me a call and I’ll discuss it with you.

I’m back.  Sorry I haven’t posted in a few weeks.  Two large trials and several smaller matters, and blogging gets put on the back burner.

The Clarion Ledger is reporting that the state has launched its  ”Drunk Driving: Over the Limit, Under Arrest” campaign again this year for the holidays.  The Mississippi Highway Patrol announced that the state has received some federal grant money, and an additional 45 state troopers will be on patrol over the holidays.  There will be additional roadblocks, ID checks, etc., during this campaign, which lasts from December 16, 2009 to January 3, 2010.  “No matter what you drive – a passenger car, pickup, sport utility vehicle or motorcycle – if we catch you driving impaired, we will arrest you. No exceptions. No excuses,” said Captain Ricky Myers of the Hattiesburg Police Department.

So if you plan to take advantage of lower gas prices and travel for the holidays, make sure that the only tank that is full is your vehicle’s.  Nothing wrong with celebrating the holidays with your family, but just don’t get on the road after you have had any alcohol to drink.  Law enforcement officers are going to be out in force this time of year, and statistics indicate that they should be.  But you don’t need to be a statistic.  The police make mistakes, too.  If you are arrested for DUI and need representation, give me a call.

Have a Merry Christmas and a Happy New Year!

It is not possible for an adult over the age of 21 to have their record cleared of a DUI conviction in Mississippi.  The general misdemeanor expungement statute, Miss. Code Ann. § 99-19-71, states that any person convicted of a misdemeanor, and who is a first offender, can ask the court to expunge all public records of the conviction.  But the statute excludes convictions for traffic violations, and the Mississippi Attorney General has interpreted a DUI conviction to be a traffic violation within the meaning of that statute.  1986 WL 81985, (Miss.A.G.), October 16, 1986.

If you are under the age of 21, however, the law is different.  Section 63-11-30(3)(g) of the Mississippi Code Annotated (the DUI statute) gives courts the discretion to nonadjudicate a first offense DUI for a person under the age of 21.  This can happen only once.  After the charge is nonadjudicated the court may then expunge the records of that first conviction on its own motion or upon the defendant’s request.  2001 WL 1627694, (Miss.A.G.), November 30, 2001, Opinion No. 2001-0719.  So if you are under the age of 21 you may have a chance.

Back in August, I posted about an alarming increase in female DUI arrests and convictions, based on a national study.  This article in the Clarion Ledger in Jackson today confirms that Mississippi is in line with that national trend.  The article shows that, according to Mississippi Department of Public Safety statistics, female DUI arrests in Mississippi have risen every year but two since 1998.

The article really doesn’t offer any scientific explanation, and I won’t either.  I think that Chief Tyrone Lewis, interim chief of the Jackson Police Department, probably summed up the general attitude of law enforcement when he said  ”To us, a DUI is a DUI, regardless of gender.”  DUI is an equal opportunity crime, and while this noticeable trend may be a good research project for someone in academia, in the meantime we will keep holding the government to its burden of proof, case-by-case, regardless of gender.

This firm aggressively defends DUI cases.  Your telephone consultation or visit to our law firm is immediate and it is free.

If you get convicted of a DUI (1st Offense) in Mississippi, part of the punishment is that the Mississippi Department of Public Safety is going to suspend your driver’s license for no less than 90 days, or until you complete the Mississippi Alcohol Safety Education Program, whichever is longer.

Unless you refused to take a “chemical” test (breath, blood, or urine), you can apply to get your license back after only 30 days of suspension, on the basis of a “hardship.”  This is a separate action, filed in a separate court, from your DUI.  You have to show the court that the long suspension would “hinder your ability” to:

1. continue your employment;
2. continue your education; or
3. obtain necessary medical care.

Normally this must be shown with affidavits from your boss, your school, or your doctor.  But once you have the required documentation, it is usually not too difficult to get your suspension down to 30 days.  Then you go back to the Department of Public Safety, pay your reinstatement fee, and get your license back.  Taking you through this process is a service I provide with every DUI representation, if you meet the requirements.

On a related note, upon your conviction of a DUI (2nd Offense), your license will be suspended for two years.  The court will order that you undergo a drug and alcohol assessment, and IF it is determined that you need treatment for an abuse problem, and IF you successfully complete the treatment, THEN you can get your license reinstated after only one year. 

If you get convicted of a DUI (3rd Offense), you are going to be doing some time, and guess what?  You will be losing your license for five years.  IF you go through  the assessment, and IF you successfully complete the required treatment, THEN you are eligible for reinstatement after three years.  This relief from the suspensions after subsequent DUI convictions is not called ”hardship” relief per se, but I can help you with these as well.

If we beat your DUI then you won’t need a hardship license.

Public vs. Private Property

A common rumor about DUI is that you can’t get a DUI for driving on private property, as in: “The police can’t stop me from cutting doughnuts in my pasture while I’m wasted because it’s my land.”  Here is where the confusion comes in, and where the rumor probably started:

Section 63-11-30 of the Mississippi Code Annotated (the DUI statute) states that it is unlawful to operate a vehicle under the influence anywhere “within this state.”  This likely means you can be prosecuted for DUI for driving anywhere within the geographic boundaries of the state of Mississippi, including your cow pasture, your driveway, private parking lots, golf cart paths, etc.  

BUT, section 63-11-5 (the implied consent statute) states that if you refuse to submit to a chemical test of your breath, blood or urine – which would result in an administrative suspension of your driver’s license unless you successfully contest the suspension in time - the state must show that you were operating a motor vehicle “upon the public highways, public roads and streets of this state.”  So technically you probably could get a DUI on private land, but you couldn’t have your license suspended for a chemical test refusal on private land.

This distinction is sitting right there in the law, but it has yet to be taken to the appellate court level in Mississippi for clarification.  As you may imagine, this issue does not come up as frequently as others, but if you think it applies to you we are prepared to help you with it.

I do not have a “typical client” demographically when it comes to DUI defense cases. I have helped more males than females, but that trend appears to be changing, according to a study released recently by the National Highway Traffic Safety Administration. The NHTSA’s data (from the FBI) reveals a 28.8-percent increase in the number of women arrested for driving under the influence over a 10-year period from 1998-2007. Transportation Secretary Ray LaHood believes this to be a “very disturbing trend.” Chuck Hurley, CEO of Mothers Against Drunk Driving even said that a mother being arrested for DUI with children in the car was “the ultimate form of child abuse.” Pretty harsh.

But ponder this: During this same 10-year period most states moved from a legal blood alcohol limit of .1 to .08 BAC. I’m generalizing here, but go with me when I say that most women are smaller than most men, and in general get to .08 BAC faster, and with less alcohol, than most men. So was this latest reduction in the legal limit – hotly debated at the time – discriminatory towards females? I said ponder it, but don’t waste too much time on it. We are stuck with a legal limit of .08 BAC. It is certainly not going to go back up.

Last Wednesday, Secretary LaHood kicked off a nationwide anti-drunk driving enforcement campaign, which will last through the Labor Day weekend. It is hoped that this campaign will reduce the number of fatalities on our nation’s roads and highways, which topped 12,000 last year. Look for more road signs, checkpoints and community education on statistics and risks.

Mississippi is involved in this national campaign, called “Drunk Driving. Over the Limit. Under Arrest.” In a press release from August 13, 2009, Commissioner Stephen B. Simpson of the Mississippi Department of Public Safety stated that the Mississippi Highway Patrol will be working closely with local police and sheriff’s departments and other law enforcement agencies to aggressively look for all impaired drivers and to arrest anyone they find driving under the influence. Commissioner Simpson also said “Too many people don’t understand the gravity of their actions and the serious consequences of driving while impaired. On top of the possibility of a deadly crash, incarceration, driver’s license suspension, higher insurance rates, and numerous other expenses from attorney fees, fines, and court costs can result from just one instance of drinking and driving.”

So be advised, they are out there, waiting on you, lots of them. If you get arrested you are going to need some help.

If your luck runs out during this period of increased attention on DUIs, give us a call. This firm aggressively defends DUI cases. Your telephone consultation or visit to our law firm is immediate and it is free. I feel certain the call will be productive for you.

“Strong Odor of Alcohol on the Suspect’s Breath”

It has been a long, long, long time since I have seen a report from a DUI arresting officer that didn’t say that the officer smelled a ”strong odor of alcohol on the suspect’s breath.”  But alcohol (ethanol) has no odor.   It is the mixing agent, or the flavoring, that produces the odor.

The officer is smelling all the other ingredients associated with the alcohol, and thinks it is alcohol, but he cannot say that he smelled a “strong odor of alcohol” without being shown to be biased and just wrong. The “odor of alcohol” doesn’t matter.  It may indicate that a person has consumed alcohol; it may not.

And the odor itself certainly cannot be used to determine how much the person has consumed — or what they drank, or when.  All the ”odor of alcohol on the breath” offers is that a DUI suspect probably consumed some alcohol recently. But it does not provide evidence that the person drank enough to be “under the influence” or to have the requisite BAC of .08 or higher.

If you or a family member have been arrested in Mississippi for DUI and you need help, give me a call at 601-991-1099.  If you live outside of Jackson, Mississippi, call my Toll-Free Line at 866-991-1555.

Or you can e-mail me at clarence@guthriefirm.com.

There is a section of the Mississippi Code Annotated entitled the “Alcohol Boating Safety Act.” Guess what that is about?

That’s right, operating a “watercraft” (boat, jet ski, etc.) while intoxicated is illegal in Mississippi. The laws are a little bit different than the driving under the influence laws, but have the same “flavor” and intent. Obviously, most of these citations are issued by the Mississippi Department of Wildlife, Fisheries, and Parks, the law enforcement agency that has jurisdiction over Mississippi’s waterways and lakes. If you are arrested for boating with a blood-alcohol content of .10% (note the difference from DUI, which is only .08%), then the maximum punishments you face for a first offense are:

• fine of $250.00 to $1000.00, plus court costs
• imprisonment for 24 hours
• completion of a boating safety course

Like DUI, the penalties increase with each conviction.  Also like DUI, these cases are defensible.  It is worth your time to discuss your options with a qualified lawyer.

If you or a family member have been arrested for Boating while intoxicated (BUI or DUI)  in the state of Mississippi and you need help,  give me a call at 601-991-1099.  If you live outside of Jackson, Mississippi, call my Toll-Free Line at 866-991-1555.

Or you can e-mail me at clarence@guthriefirm.com.