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Rising BAC Defense

What is Retrograde Extrapolation?  What is the Rising BAC Defense?  What is the Law in North Carolina?

The concept of a Rising BAC Defense is largely eviscerated by these four words:  At Any Relevant Time – Bill Powers 

 

 NCGA Download Statute:  20-138.1 2017 DWI STATUTORY DEFINITION

What Does “At Any Relevant Time Mean?”  

Put simply, the purpose of such language is to limit, if not eliminate, the concept of arguing “Actual BAC” or a “Retrograde Extrapolation” regarding BAC (Blood Alcohol Content) or BrAC (Breath Alcohol Concentration) in North Carolina.

It is frankly a complicated subject and one that merits at least some level of discussion with Legal Counsel.

 

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Modified Transcript of “Rising BAC Defense in North Carolina” for the Hearing Impaired

Hi, this is Bill Powers, and you are in our DWI section of our website, where we’re hitting some of the more common questions or legal issues, and this one has to do with what sometimes people refer to as the rising number or the rising impairment defense, and I don’t want to dash your hopes right off the bat, but I have to. There ain’t no such thing in North Carolina. It doesn’t matter really exactly what your reading was, per the law in North Carolina.

It was a defense that we saw more of maybe, oh, gracious, 20, 25 years ago, whenever they changed the law, and the concept is that by the time you got me down to the jail or wherever the breath machine was, back then it was the old Smith and Wesson breathalyzer, my number was actually higher than when I was driving, and so I would like to be able to extrapolate, and this is actually a term of science, retrograde extrapolation. I’d like to go back in time, and based on an algorithm or a scientific principle of absorption or elimination of alcohol, when I was actually driving, I wasn’t an .08 or higher. I was an .072.

This is me explaining the law, not necessarily agreeing with it, and I have different opinions on this, but the concept is that, and logical, I wasn’t really driving while impaired at the time. The General Assembly said two things about this, and I’m speaking in generalities. First is we don’t care. If you have an .08 or higher at any relevant time after having operated a motor vehicle and said consuming alcohol, that is what we call the numerical prong of driving while impaired.

There are three different ways to convict you of driving while impaired in North Carolina. One, and it’s not just automatic. The courts have to believe the numbers. The juries have to believe the number, but there’s what’s referred to as the numerical prong, or .08 or higher, I refuse to call it per se. Other professionals disagree with me. But if it’s per se and you can convicted solely on a machine, we really don’t need judges and juries. But a jury can, but is not required to. A jury may but not must. I don’t like calling it per se, because it just makes it sound like there’s no option, and I’m not trying to be coy or obtuse about that.

Two, you could have in your system, it doesn’t matter the amount, but certain even lawfully prescribed medications that they fall within a Certain even lawfully prescribed medications if they fall within a category and class and three, and these aren’t binary or tertiary, they’re not either or they can be all the above and or. Is that you’ve consumed a sufficient amount of some impairing substance, be it alcohol, legal, illegal, drug, or medication, even if it’s legally prescribed; that you lose control of your normal faculties, mental and physically, to a appreciable extent. And we often times see a combination of these things where there may be a numerical value that’s supported or otherwise corroborated with an officer’s opinion.

The General Assembly just said, “You know what, we’re just going to draw a bright line rule, if they get you downtown, and it doesn’t really matter how long, and you’re an .08 or higher, there going to assume, correctly or incorrectly scientifically, there going to hold you to that number.” There going to assume that at the time you were driving, it was that number as well. As long as it matches up with science, and it’s both good or bad; there’s the idea of absorption of alcohol and there’s also the elimination of alcohol or what we call the oxidation of alcohol.

It’s complicated, I see these cases with out-of-state people, they call up and they say, “Hey, my buddy’s an attorney down in Timbuktu jurisdiction and he said talk about the rising alcohol defense or the retrograde extrapolation defense.” And I say, “I want you to read the statue and I want you to understand that the statue says that any relevant time, after having operated a motor vehicle, you have an .08 or higher, boom.” It’s a tough statue and there are interpretations as far as the reliability of that number. But that defense is not one that … I’ve been doing it 25 years so I can have an opinion on it, I don’t think it’s really worth time. I think there are other issues that you should address on driving while impaired.

If you have questions, we have answers for you hopefully. We offer free consultations, 704-342-HELP. That’s what we do is we help people. Give me a call. My name is Bill Powers and the name of the firm is Powers McCartan and we help people with driving while impaired cases throughout the state of North Carolina. Talk to you soon.