Section 72 Rising Alcohol Defense and Absorptive Stage Extrapolation

• Library: DWI Experts and the Science of Chemical Tests 2014

Alan W. Jones says that absorption can take up to 120 minutes (stomach to blood). Alan W. Jones, Gastric Reflux, Regurgitation and Potential Impact of Mouth-Alcohol on Results of Breath-Alcohol Testing, 22 DWI J.: L. & SCI. 1 (2007). According to Dr. Jones, breath testing during the absorption phase is not accurate and should not be allowed into evidence. Breath testing is premised on being postabsorptive. Therefore, the results cannot be believed as the BAC at the time of driving.

As an example, hypothetically, the last drink of Ms. Driver was reported to have ended at 12:30 a.m., and the time of the initial meeting with the officer (the traffic stop) was at 12:32 a.m. She was arrested at 12:41 a.m., and her breath was tested at 12:50 a.m. Though her breath-test result was 0.114% (over the 0.08% presumptive level), she was in the absorptive phase of alcohol metabolism, and the result was artificially elevated. Her true BAC was from 0.057% to 0.064%—no higher than 0.064%. Therefore, the breath test accuracy is in serious question when the individual is still in the absorptive stage of alcohol metabolism.

The MoDHSS weighs in on this subject: “Even on a full stomach the peak alcohol level is usually reached within 30 to 40 minutes after the last drink.” Type III Manual § 1, p. 5.

A study of men and women examined the effect of GERD (gastroesophageal reflux disease) on breath-alcohol testing. Stergios Kechagias et al., Breath Tests for Alcohol in Gastroesophageal Reflux Disease, 130 ANNALS OF INTERNAL MED. 328 (1999). After dosing...