05/09/2012 04:47 pm ET

Richard Creighton Was So Drunk, He Might Not Have Been Drunk, Attorney Argues

This alleged drunk driver was apparently so drunk, he may not have been drunk at all.

The Metro West Daily News reports that Richard Creighton was arrested and charged with driving under the influence of liquor and driving to endanger after police pulled him over this week in Framingham, Mass.

Creighton blew an eye-popping .41, according to the paper. The legal limit is .08.

Sounds like a slam-dunk case for prosecutors. Or does it?

The Boston Herald spoke to veteran defense attorney William Harvey III who said, at that level of intoxication, Creighton shouldn't have been physically capable of driving.

"It could be a red flag that the machine isn't operating correctly, because it's so grossly high," Harvey said. "That's close to toxic levels, alcohol poisoning, where he should be dead. He shouldn't even have been able to put the keys in the ignition."

That defense might work, but the News also reported that police said Creighton "could not stand on his own after his arrest, so police did not conduct a field sobriety test."

This wouldn't be the first time someone with an alleged blood alcohol level of above .40 was able to operate a vehicle and get arrested, however. A Queensland, Australia woman blew a .407 when she was pulled over by cops, according to MSNBC.