What Constitutes Impairment of Normal Faculties or The Presence of a Blood or Breadth Alcohol Level over .08
"Normal Faculties includes, but are not limited to, the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, and , in general normally perform the many mental and physical acts of daily life."
If the delay does not fall into any approved periods, Miller requires application of two principles. 1) test results are secured within a reasonable time after the stop if they are relevant. Evidence is relevant if it tends to prove or disprove a material fact. 2) Even if the results are relevant, the court may exclude them if their probative value is substantially outweighed by the danger of unfair prejudice, confusion, or the tendency to mislead the jury."
"The expert testified that the blood alcohol level reached its peak between 45 minutes and three hours after ingestion, depending upon the amount of food the driver consumed. Thus, four hours after the stop, the driver's blood alcohol level should have already peaked and be no higher that it was at the time of driving. Based on the totality of the circumstances, the test results from a sample taken four hours after driving were probative of the blood alcohol level at the time of driving even though the results could not be extrapolated back to the time of driving."
When blood or breath alcohol levels are unavailable, the state can only prove the charge by testimony as to behavior or characteristics justifying the inference that the defendant was not functioning normally. Impairment may be established by describing a person's demeanor and conduct."
"In prosecution for driving under the influence (DUI), state was required to prove that defendant's faculties were “impaired,” rather than merely “weakened.”"
