DUI/DWI in New York: The ‘Mount Everest’ Defense

The client came to us with a legal problem – and a conundrum. He’d been ‘breathalyzed’ after a minor fender-bender, because a police officer had smelled beer on his breath. His blood alcohol content? Well, as measured by the machine, it was in the low astronomical range. That was the legal problem. His actual intake prior to the accident? Two 12 oz. beers, he said. That was the conundrum.

The legal problem was clear enough: a B.A.C. of .07 – one third our client’s reported B.A.C. of .21 – is prima facie evidence of impairment. (‘.07’ here is shorthand for “.07 of one per centum or more by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva.” This formula is laid out in Section 1192 of the Vehicle and Traffic Law.)

A driver with a B.A.C. of .08 or greater is driving while intoxicated – a misdemeanor, if it’s a first offense, a felony if not.

A B.A.C. of .18 or greater will buy you a charge of ‘aggravated’ driving while intoxicated. A first offense is still a misdemeanor, but fines and license revocation periods are essentially doubled. And perhaps most importantly for a first offender, the law makes it difficult to get the charge reduced to ‘driving while ability impaired’, which is a traffic violation. With a reported B.A.C. of .21, our client was, of course, facing a charge of aggravated DWI.

It’s hard, though, to commit aggravated DWI on two 12 oz. beers. You will surely have an elevated B.A.C. if you drink them both within an hour. If you weigh a hundred pounds or less, you might even reach a B.A.C. of .08, which would make it criminal to drive. But it’s a long way from .08 to .21, and our client, while not a large man, was by no means tiny, either: two beers might have given him an actual B.A.C. of at most .05.

How do you solve a mystery like this? In most cases, sadly, it turns out that the client was mistaken about the number of drinks or the size of the drinks. (‘Just one beer’ has more than once turned out to mean a 32 oz. bottle.) Every once in a while, though, a client seems very sure of his or her facts. And this was one of those times.

So we started probing. After questioning our man, we provisionally ruled out any funny business connected with the test itself (we could return to that later, if necessary). Nor did our client have any obvious health problems that might account for the result. He was, in fact, in prime physical condition.

It wasn’t until we asked about his employment that we discovered what might be going on. Our client was unemployed, it turned out. That in itself wouldn’t be anything to get excited about. However, the reason for his unemployment was very interesting – he had left his last job to travel to Nepal and Tibet with a view to climbing Mt. Everest. In fact, he had returned less than a week before the arrest.

Our client had spent 60 days above 15,000 feet while making his attempt on Everest, climbing to a maximum altitude of about 25,000 feet. (He was told at that point not to attempt the summit, because he had symptoms of altitude sickness.)

With our client’s recent history in hand, we approached a molecular biologist, who reviewed the scientific literature for us. We were advised that prolonged exposure to high altitude causes significant metabolic changes. Specifically for our purposes, it causes a dramatic increase in hematocrit (hematocrit is the non-aqueous portion of the blood). This is due to increased production of red blood cells to handle lower oxygen levels.

The hematocrit level of a person exposed to the altitude at which our client was operating can be as high as 80%, as compared to a normal healthy male’s at sea level, which generally ranges between 40% and 50%. The literature also establishes that that these higher levels of hematocrit can persist for as long as eighteen days after a return to sea level.

The DWI arrest was within one week of our client’s return. It was pretty clear, therefore, that at the time of the arrest, he must have had a greatly increased hematocrit level.

Why is this important? Because alcohol is carried only in the aqueous portion of the blood. When the hematocrit level is raised, relative to the total volume of blood, a greater amount of alcohol is forced through the blood/breath barrier relative to the BAC. In other words, the higher the hematocrit level, the lower the blood/breath ratio.

The breathalyzer results were derived using a calculation based on a ratio of blood alcohol to breath alcohol of 2100:1. This ratio is arbitrarily based on a hematocrit level of 45%, which is in the middle of the normal sea-level range. Because our man’s hematocrit was higher, his blood/breath ratio would have been much lower than 2100:1. Using a ratio of 2100:1 therefore greatly overstated his BAC, and because of this the breathalyzer results were provably wrong. Mystery solved.

Naturally, from the heights of Everest we had to come back to earth and, here on earth, solving the mystery didn’t make the legal problem go away. We now had some ammunition, it’s true, but our client’s record was not completely clean; the police claimed to have evidence of impairment based on observations of his behavior at the scene of the accident; and while we had an argument (albeit a good one) based on extrapolation, the prosecution had a number, .21, in black and white. The bottom line: our client might now have a decent chance of winning at trial, but he would be taking a significant risk.

So, where did our efforts get us?

As we mentioned, Section 1192 has plea bargain limitations built into it. Subsection 10(d) of the statute requires a plea to at least a misdemeanor when a defendant is, as our client was, charged with aggravated DWI. Many district attorneys have policies that reinforce this. The only way around the plea limitations requires the prosecutor and the court to stick their necks out to some extent.

However, because we were able to convince the prosecutor that our client had a valid defense to at least the aggravated charge, he ultimately offered a plea to ‘driving while ability impaired’. This is a traffic violation, not a crime, and results in a 90 day license suspension, rather than a six month or one year revocation.

Our client took the offer.