Simpson's preliminary breath test, given after he failed three field sobriety tests on Interstate-394, showed a blood-alcohol content level of .095, which is above Minnesota's legal limit of .08. But Simpson did not take a breath test when he was booked at the Hennepin County Jail, refusing it on "advice of my counsel," according to the criminal complaint pertaining to his arrest.
That advice, Murphy writes, came from Kentucky attorney Burr Travis, who represented Simpson in his 2012 trial for drug possession. Simpson's Minneapolis attorney, David Valentini, called Travis' advice "unfortunate" and argued Simpson would have been under the legal limit by the time of a second test.
"It's our position if he'd taken the test, he would've passed it," Valentini said. "He was advised by counsel not to take it, and that was unfortunate."
Simpson refused the breath test at 5:11 a.m. on Nov. 9, according to the criminal complaint, and was first approached by a Minnesota State Patrol officer at 4:28 a.m. His blood-alcohol content level would have had to drop by .016 in less than 45 minutes for him to be under the legal limit at the time of a second test, but it appears Valentini will contend Simpson could have sobered up in time as he argues the receiver's case.