There is no sure way to beat a blood test, but blood tests do have many faults of their own. Namely, they are ripe territory for human error from the moment the blood is drawn until after the analysis is complete and potentially even after that. This blog is going to focus on a narrow aspect of defending blood test DWI’s by the “disconnect theory”.
Clients come into my office after being arrested and say, “I know I wasn’t drunk and my blood test will prove it”, only to discover weeks later when I get the blood analysis report, and the score is .20. That is two and a half times the legal limit. Some defense attorneys might shrivel away at that high score. I immediately begin thinking on how I can use that as a defense tactic at trial.
When this happens, looking at the video is crucial. Does the person in the video look like someone who is highly intoxicated? A score of .20 will often be pumped up even higher through a process known as “retrograde extrapolation” by an inexperienced prosecutor. I point out the reasonable alternative explanations for things the officer says are “signs of intoxication” and emphasize the areas of the video that show sobriety. Most police cars are fashioned with dashcams, and it is more and more likely that police officers are wearing body cameras.
These cameras capture the initial contact that police officers make and the subsequent Standardized Field Sobriety tests (SFSTs) the officer asks you, the driver, to perform. The video captures how you actually appeared that day/night without the color of the police officers words. It is here that the true gems of the disconnect theory lay. The question to be left in the jury’s mind is does this person look to “me” like someone 2 to 3 times over the legal limit or is there something missing?
The disconnect theory comes down to convincing the jury that machines aren’t always right, mistakes can happen and that sometimes, numbers do lie and your eyes don’t.
