Author of "The DUI Answer Book" A Citizen's Guide to Understanding Your Rights

A Male Burns Off Two-Thirds of a Drink an Hour


Welcome back to the DUI Trial Lawyers Academy. This podcast is brought to you by Silva&SilvaLaw.com. Great lawyers, helping great people. And now for your host sought after speaker, avid mountain bike racer, and renowned DUI trial lawyer, Patrick Silva.
Patrick Silva:
Welcome back to the DUI Trial Lawyers Academy. This is your host DUI trial lawyer, Patrick Silva. In today's podcast we're going to be examining what the NITSA Manual states about the dissipation of alcohol from the human body. We're going to follow that up with how to create a cross-examination fact pattern. Then it's going to help you prove through, let's say cross-examination of the officer and a cross-examination of the State's lab tech to prove that the numbers that they come up with are incorrect. But let's go to the very important location. Where is this information located? First of all, you're going to have to get a copy of the instructor manual. I will have those uploaded on my website, but if you go to page 34 of session two of the 2015 NITSA Instructor Manual, it states that a male dissipates approximately two-thirds of a standard drink an hour.
Now let's construct a cross-examination fact pattern where we can utilize this information. First of all, you're going to lay your foundation on the officer. Yes, he's trained in NITSA. Yes, it's the DWI Standardized Field Sobriety Test Manual. So if he's seen it before, you could serve a copy on him. You could have him review it in the hallway, give him a copy while he's in court, send him a copy before he even gets to court. It's important that he reviews it before his testimony, and that part of his review was the basis of his testimony there in court today.
But why is it important to say that two-thirds of a standard drink dissipates each hour from the male body? Let's talk about that a little bit. Let's look at what's happening in trial. The lab tech takes a stand and they're going to say, oh, Johnny was a 0.14 at the time of the blood test, based on what he told the officer. And they're going to use the starting and stopping points as a reference point in order to say this is how many standard drinks Johnny must have had. So let's just say Johnny is a 200 pound male adult, 25-ish. And the lab Tech's going to say, okay, on a 0.14, Johnny started drinking at this time stop. At this time, this was his blood alcohol calculation at this point in time.
What they're going to do is they're going to make a couple of assumptions. They're going to do a hand calculation, and you're going to hear the Jeopardy theme. Don, don, don, don, don, don. Then they're going to come up with their magic number saying, oh, well, based on Johnny's height and weight, he must have had seven standard drinks in him at the time of the alcohol blood draw. So let's kind of break this down a little bit.
You're going to have a couple different drinking fact patterns. You're going to have the fact pattern that the lab tech has to make assumptions on, and that's what her assumption was right there. First she's assuming that the blood work was done completely and correctly and that the blood number is correct. And then they're going to make a couple other assumptions. Is the drinking times that Johnny told the officer correct? And then they're going to do a calculation. And let's just say they come up with a 0.14 on the blood work, and they say, oh, seven standard drinks at the time of the draw. Now, your other fact pattern is going to be the fact pattern that Johnny told the officer. Johnny might say, well, I had X, Y, or Z to drink. I started this time. I stopped at that time. If we take Johnny's fact pattern and do a forward extrapolation, we're going to get a lower number. There might even be a third fact pattern.
Let's say that Johnny has a receipt from the restaurant or the bar. Well, the receipt shows that Johnny had a heavy meal. He went to the Outback Steakhouse. He had a couple of drinks, maybe two or three. He had a big ol' ribeye steak and potato, and he had a very heavy meal. So you have three different drinking patterns. But how are we going to use the dissipation of two-thirds of a drink an hour? So let's establish with the lab tech. They're saying Johnny had seven standard drinks. And then what we're going to try and do on the cross is get the lab tech to admit, okay, standard drink seven, he started about this time. You're going to get her to admit that for every drink that he takes in once he starts drinking, his body immediately starts to eliminate alcohol.
And then what you can do is you're going to try and get them to recognize that it is two-thirds of a standard drink an hour. Well, they're not going to readily admit that. On the elimination rate, they're going to use a range. And the range could be a 0.009 an hour to a 0.025 an hour. And what they average means of a 0.017. So that's what they're going to say. So basically, if Johnny stopped drinking and then it's two hours later, they're saying he would have eliminated 0.03 in those two hours. Now, you're going to have that calculation by the lab tech. So they're not going to agree with you. They're probably going to fight you in every inch of the way and say, oh, we don't do standard drinks.
But what you're going to do is you're going to create an inconsistency in testimonies in the prosecution case because you're going to have the lab tech coming up with this blood alcohol drink calculation, and then we're going to go to the officer, Officer Jones, you're actually trained in the NITSA, right? And it says that a standard male is going to dissipate about two-thirds of a drink an hour. And then you can say, well, my client, normal male. Yep. He's male, not female. And according to the lab tech, they're saying that Johnny had about seven drinks starting at five o'clock. Well, how are we going to do this?
What we're going to do is we're going to take each of those standard drinks, and then we're going to say, okay, Officer Jones, well if Johnny had seven standard drinks, and each hour he's eliminating two-thirds of a drink, let's go through each one of them. So drink one, he eliminated two-thirds within an hour. Drink two, he's eliminating two-thirds of a drink. Drink three, he's eliminated two-thirds of the drink. So by the time he gets to drink seven, he's in essence eliminated two-thirds of the drinks that were in his body.
At that point, Johnny would have eliminated a little over four drinks. So he basically has two drinks left in him, but they're not full drinks because in those last two hours, those drinks were being eliminated as well. What you're trying to do is get the officer to admit well, based on their own training, if Johnny started at drinking at five and he finished at a certain time, that his body's going to eliminate about two-thirds of those drinks. So at the time of testing, he really only had approximately one and a half to two drinks in his system. And then you could go back. Well, looking at the, say the DMV handout card that they give you, Johnny weighs 200 pounds. Those two drinks would have put him at an 0.04. So what you're doing is you're creating a level of inconsistency between the officer's calculation of Johnny being 0.04 at the time of driving and the lab techs opinion that Johnny was a 0.14 at the time of driving.
You can follow up your cross with the officer that the 0.04 is more consistent with how Johnny performed on the field sobriety test. You could point out that Johnny's symptoms, symptomology of sobriety was consistent. Didn't have any problems with the [therity 00:10:20] . He got out of the car easily, had no other issues. No slurred speech. No red, watery eyes. So the one for the 0.14 is actually disconnect between the number and the reality of the sobriety that he showed through the symptoms of sobriety. Remember, words are powerful, so are pictures. What you're going to do is as a lab tech is testifying on direct, you're going to be taking your notes and you're going to create blow up cards. If you have time, you're putting it in a PowerPoint. But let's just say you're handwriting it on a two by three phone card, and you're putting her fact pattern there.
And then as the officer testifies, you putting that on another card. In closing, you'll be able to use those two cards to say, well, look it. There's an inconsistency in this prosecution's case. One, the lab tech's saying John is a 0.14 Now, on the other hand, the officer said he was actually below an 0.04. Who are you going to believe? The officer or the lab tech? And then that's just one theme that I just covered. Remember, you're going to have other multiple themes on the attack of the blood. And as we go through this course, we'll get to the blood problems. But you could see what you're creating here is you're using the NITSA Manual to show that, hey, everything's not hunky-dory in this picture.
All right. I know this has been a short, sweet one. Hopefully, I didn't make it too confusing on all the blood number discussions and the two-third dissipation. All right. You know what to do. Put on the boxing gloves, climb into the ring and have a great fight. This is your DUI trial lawyer, Patrick Silva. Over and out.

Thank you for listening to the DUI Trial Lawyers Podcast. This episode brought to you by Silva&Silvalaw.com.

​Who do you want as your attorney? The Master or the student? Patrick Silva has over 20 years of DUI experience, he has been published in DUI reference books, he has spoken in front of hundreds of attorneys at conferences, taught classes to lawyers on his secrets and strategies, and has a nationally listened to podcast dedicated to teaching other DUI lawyers how to win.  (909)798-1500