An Oregon senator has introduced legislation that would make it an offense to have a blood alcohol concentration of .08% or higher two hours after driving a motor vehicle. Senator Peter Courtney says that he drafted Senate Bill 1503 to close a loophole stemming from a 2014 drunk driving case. In that case, a motorcyclist’s DUI conviction was overturned because the breath test that was used to convict him was conducted two hours after he was stopped by police.

When they appealed the conviction, defense attorneys argued that proving intoxication beyond a reasonable doubt was impossible because of the time that passed between the traffic stop and the breath test. During this time, they said that the motorcyclist’s body could have absorbed more alcohol, which would have raised his BAC. The appeals court was persuaded by this argument and overturned the conviction.

Prosecutors appealed to the Oregon Supreme Court. They argued that it is widely understood that BAC levels diminish over time. While the justices did not refute this argument, they pointed out that a widely held belief does not meet the standard for evidence in criminal cases. Prosecutors responded by citing laws in states like Washington and Colorado that allow toxicology evidence to be introduced in drunk driving cases even if breath tests are conducted two hours after traffic stops. The justices said that the matter was a legislative rather than a judicial issue. This is what prompted Senator Courtney to introduce Senate Bill 1503.

BAC evidence may not always be reliable even if breath tests are performed promptly. Experienced criminal defense attorneys may challenge the reliability of toxicology evidence and seek to have DUI charges dismissed if the equipment used to perform tests was not maintained properly or the police officers who conducted the tests deviated from strict protocols.