There is an interesting ruling out of Oregon where Charles Hedgpeth was able to successfully challenge his drunk driving charge due to the delay in testing by the arresting officers. Coos County Circuit Judge Richard Barron was reversed in his conviction of Hedgpeth after the Oregon Court of Appeals ruled that the hour and 45 minute delay could have allowed more alcohol to enter his blood in pushing his blood alcohol content (BAC) to .09 — the legal limit is .08. This is a case where time was of the essence for conviction.
The appellate court ruled that it was possible that Hedgpeth was legal when stopped due to the rate at which alcohol is absorbed into the system when he was stopped on March 21, 2014 for driving his motorcycle without a helmet.
It is certainly possible that he had a higher level but the prosecutor failed to address this obvious issue. With no such evidence, the panel felt it had to toss the conviction. Moreover, road sobriety test results were also left out of the record by the prosecution.
The majority decision is well-written and well-supported. It notes:
Here, the state attempted to establish an element of its DUII case by inference. That is, the state contends that, based on defendant’s blood alcohol test result of .09 percent obtained one hour and 45 minutes after defendant was driving, the fact that defendant had not consumed any alcohol during that intervening time, and the common knowledge that alcohol dissipates over time, a reasonable factfinder could infer that defendant’s BAC was .08 percent or higher at the time that he was riding his motorcycle. The state is allowed to rely on “circumstantial evidence and reasonable inferences flowing from that evidence” to prove an element of a crime. State v. Bivins, 191 Or App 460, 466, 83 P3d 379 (2004). However, “[t]here is a difference between inferences that may be drawn from circumstantial evidence and mere speculation.” Id. at 467 (internal quotation marks omitted).
Obviously, this problem can be avoided with better work from the police and prosecution. There should not be such a delay in testing and prosecutors seemed to dismiss the need to fully respond to the defense arguments at trial.
As Benjamin Franklin said “Lost time is never found again.”
I recommend reading both the majority and dissenting opinions.
Here are the opinions: Majority and Dissenting Opinions.
Did this gentleman hurt anyone or damage anyone’s property? Or, was he arrested because he “might” do one of those things? Someone that’s mad at their spouse “might” do something bad, so should we ban the sale of alcohol or forbid Hillary being on TV because these kind of “might do” things could happen if a spouse is upset and/or sees Hillary (or The Orange Blossom Special guy) on television?
/
The majority is right. They waited too long to test him.
That is exactly correct and you are both right. We had a time limit to get the BA sample taken but worse if could be shown the doer had taken more alcohol safter the act there was no way of showing BAP so the charge was not DWI while intoxicated or DUI under influence but failure to maintain control or some simllar verbiage.
Surely this is a matter of medical science.