MARYLAND DUI UPDATE: EFFECTS OF RESIDUAL ALCOHOL RETENTION ("RAR") ON DUI BREATH TESTS

Defense attorney Charles Ware is recognized and ranked by his many satisfied clients and legal peers as "One of the State of Maryland's BEST 10 DUI & DWI Attorneys", as researched, surveyed and confirmed by the American Institute of DUI and DWI Attorneys [AIDUIA].  For an initial courtesy consultation, call defense attorney Charles Ware at (410) 720-6129 or (410) 730-5016, or email him at charlesjeromeware@msn.com.  He can help you.  Guaranteed.

I. RESIDUAL ALCOHOL RETENTION

It is my contention --- and I have made the argument in court successfully --- that in many circumstances cosmetic dentistry --- including dentures (false teeth), braces, veneers, invisaligns, bridges, grills, and even implants can cause "residual alcohol retention" which can adversely affect a drunk driving (DUI and DWI) defendant's performance [cause a false positive result] on a breath alcohol test.

If you have had an alcoholic beverage, alcohol residue can in some cases collect in your dentures, etc.  Indeed, in North Carolina it is said that police are supposed to observe or ask and write down (or record) whether a driver has dentures, or wears braces, or is sporting some other cosmetic dentistry when making a stop or arrest for drunk driving.

If you are charged anywhere in Maryland for DUI or DWI, call premier defense attorney Charles Ware immediately.  He can help you.  Guaranteed.

II.  ALCOHOL RETROGRADE EXTRAPOLATION

Retrograde extrapolation.  Whether in a per se or a traditional DUI case, the prosecutor will usually introduce chemical evidence of the defendant's blood-alcohol level.  Of course, by itself this evidence is irrelevant: It reflects the blood-alcohol level of the defendant at the time of testing - not at the time of driving.  And, of course, it is not a crime to be under the influence of alcohol in a police station or hospital.

A number of states have statutes that provide the blood-alcohol level at the time of testing is conclusively presumed to be the level at the time of driving.  Such a statute was challenged in State v. Ullan (no. 5884, Olmstead County, Minnesota, District Court, Eastern Appellate Division, slip opinion filed October 21, 1983).  In the trial court, the jury returned a guilty verdict to the offense of driving with an alcohol concentration greater than .10 percent.  On appeal to the district court, the defendant contended that the trial court's jury instruction had created an impermissible conclusive presumption and thus constituted a denial of due process.  The district court agreed with the defendant.