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DUI on 405 Freeway, 3.5 Hour Delay Until Breath Test

Our client, age 29, was coming home from a work-related get together in Woodland Hills.  He had consumed three or four Belgian beers at the function.  It was about 12:30 a.m. and a weeknight.
Brief Synopsis: Vehicle Code § 23152(b) provides that there is a rebuttable presumption that the blood alcohol content (BAC) of a driver measured within three hours of last driving is the BAC when the driver was driving.  However, if the BAC is measured more than three hours after the driver last drove, the BAC is legally irrelevant, as this case exemplified.
Our client first drove eastbound on the I-101 Freeway until reaching the I-405, at which point he merged onto the 405 and headed south.  He was driving a 2018 Mercedes CLA 250 and in the cup holder in the center console was an open Heineken beer.

Traffic was light.  As the client passed the Getty Museum to his right, he noticed flashing red and blue lights to his rear and realized the police car wanted him to pull over.  Our client then exited the 405 at Sunset Boulevard and pulled alongside the curb.

image description405 Freeway

It was 12:45 a.m. when the CHP officer pulled over our client.  He advised our client that the reason for the traffic stop was that he observed our client lane straddling on the freeway.  The officer then proceeded to ask our client if he had been drinking.  Our client told the officer that he had drank two beers earlier in the evening. 

The officer then asked our client if he would submit to a Preliminary Alcohol Screening (PAS) test and our client declined, as is his right under Vehicle Code § 23612(i).  The client then performed several field sobriety tests (FST’s), which the officer determined were not performed satisfactorily and arrested our client.

Our client was then asked if wanted to submit to a breath or blood test and he indicated he wanted a blood test.  This turned out to be a very wise choice.  As it was a weekday, the CHP had a difficult time finding a facility at which one could draw our client’s blood.  This was fortuitous, as it was not until 0418 when our client finally was able to provide a blood sample.

The three-hour and thirty-three-minute delay in drawing our client’s blood proved to be helpful to our client.  His blood was then measured at 0.076% blood alcohol content (BAC) and 0.072%.  Under Vehicle Code § 23152(b), a person’s measured blood alcohol content is presumed to be the same BAC as when the individual was driving if the blood or breath sample is obtained within three hours of when the individual last drove.


In our client’s case, the three-hour presumption did not apply due to the delay in finding a laboratory to draw our client’s blood.  We anticipated, however, that the Department of Motor Vehicles would try to argue that when the client was driving, his BAC was over 0.08% because our client was metabolizing alcohol during the three-hour, thirty-three-minute period.  This process is called reverse extrapolation and, in our client’s case, would mean adding to the 0.072% by 0.018% per hour (the average rate at which a human metabolizes ethanol).  This would mean our client’s BAC was closer to 0.13% when he last drove.

This certainly would seem to be a logical argument.  However, such an approach has been soundly criticized as “junk science” by many of the most highly qualified blood alcohol experts.  Such experts have strongly opined that such an approach is unreliable because it requires an assumption that the individual has certain “average qualities” based upon his age, gender, body fat percentage, drinking pattern, breathing patter, liver function, kidney function, hematocrit level and over twenty other characteristics.  While this is undisputed, the DMV nonetheless often attempts to reverse extrapolate BAC levels.

Our office explained to the DMV why reverse extrapolation was unreliable and should not be used.  In this case, surprisingly, the DMV agreed and set aside the suspension of our client’s driving privileges.  The client was extremely happy with this result.

For more information about DUI and blood alcohol level issues, please click on the following articles:

  1. Little Known Facts About Your Rights in DUI and the DMV
  2. Why Is Reverse Extrapolation of One’s BAC Junk Science?
  3. Warrantless Blood Draw Allowed in DUI Case, without Driver’s Consent – Does This Violate McNeely v. Missouri? Appeals Court Says No
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