7. The 3-Hour Presumption
Relating Back.
Police officers are never able to test your blood alcohol precisely at the time you are driving. Your attorney will explain to you that typically at least 10-40 minutes elapse, sometimes more than an hour or two subsequent to driving, particularly in accident cases and during busy holidays. Therefore the law provides the government with a presumption that as long as the test samples are obtained within three hours of driving, the law will presume that the result obtained subsequent to the DUI arrest relates back to your alcohol level at the time of driving. If the test sample was not obtained within 3 hours, then the government cannot rely on this presumption and you may very well have a winning case in Mendocino County Superior Court and at the Santa Rosa DMV.
Understand that the 3-hour rule is a rebuttable presumption, a legal fiction which may be challenged with our own affirmative evidence introduced in a Mendocino County court or at the Santa Rosa DMV, that the test is not an accurate reflection of your alcohol level at the time of driving. The best example is evidence of drinking after driving.
Time of Driving.
Obviously, in order to take advantage of this gift of a 3-hour presumption, the government (both the Mendocino County District Attorney and the Santa Rosa DMV) must be able to establish a time of driving with some degree of probability. Mendocino court and DMV cases may be winners if, for example, your Mendocino County DUI lawyer can show that you were parked for more than a couple of hours prior to encountering law enforcement, or if an accident scene is undiscovered for a long time. Often a Ukiah DUI lawyer can use impartial witness testimony, bar receipts, phone messages, and cell phone records to establish driving outside three hours. DUI attorneys can expect to encounter contrary government evidence of time-stamped dispatch records, evidence of the public visibility of an accident scene, or evidence of recency of driving (you in the driver's seat, warm hood, keys in ignition, engine running, lights on) to challenge the possibility that your vehicle had not been stationary for a long time.