If a New Year's reveler drinks three cocktails in less than one hour, the cumulative BrAC or BAC will be at least .06 grams per 100 L blood or 210 L breath.
Indeed, I have already witnessed officers on video telling field sobriety test subjects that the preliminary breath test doesn’t exclude intoxication.
I have seen some of my colleagues propose a “three cocktail limit” on New Year’s Eve to avoid an OWI (DUI) arrest. A three cocktail limit isn’t good enough. For most people, one drink containing an ounce of ethanol in a single hour will metabolize two hundredths of a gram of alcohol per 100 L blood or 210 L breath. If a New Year’s reveler drinks three cocktails in less than one hour, the cumulative BrAC or BAC will be at least .06 grams per 100 L blood or 210 breath. While it is true that this practice will fall .02 grams per 210 BrAC or BAC below the presumptive level of intoxication in Iowa, it may not prevent an arrest or even a conviction in Iowa.
Where I practice, in eastern Iowa, officers typically make an OWI (DUI) arrest prior to the administration of the implied consent advisory and Datamaster DMT request.
Therefore, if someone blows at the stationhouse under the presumptive level of intoxication in Iowa, which is .08 grams per 210 L breath, then the officer may later testify that a defendant was nevertheless impaired regardless of the presumptive level—or conform their later testimony that the defendant’s outward demonstration of intoxication contradicted the test result, possibly because of a combination of drugs or alcohol or their individualized intolerance for alcohol
Indeed, I have already witnessed officers on video telling field sobriety test subjects that the preliminary breath test doesn’t exclude intoxication—by that theory, it merely excludes ethanol intoxication.
The Iowa model jury instructions allow juries to find intoxication without a presumptive test result—for example, if a defendant’s emotions are excited or he or she loses control of a bodily function or ability to reason, or if judgment is “impaired.” See Iowa Model Jury Instruction 2500.5.
Because the Datamaster DMT may include, but not exclude, the possibility of intoxication based on the officer’s purported observations, it is unfortunate but true that a driver in Iowa should ingest nothing intoxicating when celebrating New Year’s eve to avoid an arrest. Limousine and taxi services abound (although public intoxication could still be a problem). A designated driver may feel out of place on New Year’s Eve but everyone in his or her group will be so much the better off in the morning.
This neopohibitionist reality has been brought to you by grieving drunk driving opponents and the politicians who pander to their misplaced desire to bring meaning to otherwise senseless traffic deaths where alcohol may not even have been the proximate cause. Such groups have reduced presumptive levels of intoxication in Iowa federally by demanding that States agree to the lower .08 limit or risk federal highway funds.
If it's too late for this advice and you or a loved one was arrested for drunk driving in Iowa: it happens. It’s now time to become an informed legal consumer and obtain a reasonable, accessible, and experienced defense for this bump in the road. Contact David A. Cmelik Law PLC for a free ½ hour initial consultation at 319-389-1889 or www.daclawfirm.com.
A blog is not legal advice and no attorney-client relationship is established by reading a blog nor by sending unsolicited information to an attorney over the Internet.
That’s because the odor of alcohol, and the concomitant self-fulfilling prophesy that the officer’s conclusions are correct (supported by NHTSA “studies”) will likely lead to an arrest if an officer engages in a perfunctory traffic stop and elevates his or her suspicion to reasonable grounds to invoke implied consent.
Copyright David A. Cmelik Law PLC. All rights reserved.