Breath Testing Information - What Every
Citizen MUST Know
William C. Head, Esq.
 OVERVIEW.
For over 22 years, drunk driving laws have been getting
tougher and tougher. In virtually every state, the
legislative branch ANNUALLY passes new laws, or increases
punishment for existing laws. Why? It is due
to the relentless pursuit of "prohibition" by MADD in our
state legislatures each year. Once the legislative
branch "acts" in response to the MADD pressure (now fully
supported by the Federal Government through NHTSA) the trial
courts and appellate courts fall in line and mete out severe
punishment, as directed by the legislature. Our jails
are full to capacity, with many jail cells housing three
to four times the number of prisoners they were designed
to accommodate. In 1995, Georgia changed its DUI laws
THREE times in less than 9 months! The trend is for
the laws to get more Draconian each year, and (in doing
so) we lose more rights as citizens.
MUST I GIVE A TEST?
When a driver is suspected of DUI / DWI / OUI / OWI (or
however your state has opted to abbreviate it), an officer
is given the statutory "option" of asking that you submit
to a chemical test of your breath (most common type test),
or blood, or urine, OR ALL THREE (in some states, like Georgia).
The majority of states permit a person to REFUSE to submit
to testing. In most cases, the police officer will
have asked you to first perform field sobriety tests, but
these field evaluations ARE NOT mandatory. In
others, (e.g., South Carolina), the officer suspecting alcohol
as the impairing substance can only ask for breath, barring
a vehicular homicide or other extenuation circumstances.
In others, (e.g., California), the officer must ask for
breath, but verbally advise you that the California breath
test does not provide a sample for later independent testing
(by you or your legal counsel), so you can OPT for a blood
test, if you so desire. Others offer you the chance
to be tested "the easy way", by blowing into a breath machine,
and if you try to resist, you can be PHYSICALLY wrestled
to the ground, beaten, choked or even strapped to a table
or gurney so that blood can be drawn from your body or urine
can be extracted through a catheter inserted in your penis
or urethra. Yes, we are talking about a garden-variety,
misdemeanor DUI / DWI case in the United States of America,
without serious bodily injury or death. Yes, we are
talking about these unbelievable acts being LEGALLY sanctioned
by some of our more pathetic appellate courts across America.
 IMPLIED
CONSENT LAWS AND TYPES OF TESTS OFFERED. This
"option" for officers to ask (DEMAND in some jurisdictions,
such as Nevada and Michigan) that you submit to EVIDENTIAL
breath testing or EVIDENTIAL blood testing (i.e., the police
PLAN to use it against you in court to convict you) is called
"implied consent" or "informed consent". The idea
developed from a legal fiction whereby the government agreed
that if a person opted to drive on the state's roadways,
and thereby obtained the "benefit" of this public expenditure
of money, then the person also IMPLIEDLY agreed to submit
to giving a sample to the police so that analysis for alcohol
(and drugs) can be performed.
In the last decade,
some state governments began to actually ADD this printed
language to the driver's license application forms REQUIRED
of its licensed drivers, effectively FORCING the person
to agree in writing to give breath, blood or urine at the
request of a law enforcement officer who may suspect you
of driving while impaired. In law school, we were
taught that this is the classic ADHESION contract, whereby
one party (without any real bargaining position, was FORCED
to sign an unfair agreement when no viable option---EXCEPT
to sign---exists.
PENALTIES
FOR "REFUSAL". In the states where Gestapo-type
brutality is NOT permitted to be used to force a test from
your body, the usual "penalty" for not taking a "chemical
test" (i.e., a blood, breath or urine test, to determine
what "chemicals" are in your body) is most commonly LOSS
OF LICENSE [or, loss of DRIVING PRIVILEGES in that state
if your are licensed by another state at the time of your
arrest]. A few states have passed additional laws
penalizing the driver who refuses to be tested with monetary
penalties or other similar sanctions, but there are limits
to what punishment can be exacted against a person who chooses
NOT to incriminate himself/herself. The length of
a suspension/revocation depends on state law, and varies
widely. Some states allow a "work" permit after a
refusal; others (i.e., Georgia) do not. Check
your state's laws by contacting knowledgeable legal counsel.
 PENALTIES
FOR TAKING THE TEST, BUT BEING "OVER" THE LIMIT.
All states now have "administrative" license suspension
(or revocation) laws. Lawyers, police officers and
your DMV / DPS / MVR / BMV office call these "ALS"
or "ALR". The administrative suspension
DIFFERS from a suspension for a criminal conviction, and
is generally codified under a different part of state law.
In most states, the administrative "action" taken against
your license is ADDITIONAL to any action that may be taken
after conviction occurs. Clearly, this is double punishment,
but our highest courts have universally said, "That's okay,
if the legislature wants to do it that way, because driving
is a privilege, not a "right". As with "refusal" penalties,
the length of a suspension/revocation depends on state law,
and varies widely. Some states (i.e., Georgia, but
only for first offenders in five years) allow a "work" permit
after a refusal; others do not. Check your state's
laws by contacting knowledgeable legal counsel.
HAVE
MY RIGHTS BEEN VIOLATED? Because the laws
vary widely from state to state, reference to your own state's
laws it is critical [in every DUI / DWI / OUI / OWI prosecution]
to determine whether by the arresting (or testing) officers
violated any of YOUR LEGAL RIGHTS. Some state's appellate
courts have been very liberal in upholding the strict mandates
of their "implied consent" statutes (i.e., either the officer
followed all the rules or the test would be subject to being
EXCLUDED from the State's evidence at trial). The
appellate courts of other states have turned a blind eye
toward these statutes, almost always finding a way to UPHOLD
a conviction (or to reject a pre-trial challenge seeking
to suppress the test). If your legal rights have been
violated, both the criminal case AND the ALR / ALS (administrative
action against your license for having taken a test and
being over the state's BAC limit) may be subject to being
dismissed (or "rescinded"- i.e., lifted) so that
no suspension or revocation can be maintained against your
driving privileges.
HISTORY OF BREATH
TESTING DEVICES. Breath testing devices in
America have been in use since the early 1940's, although
the first ones were crude, highly inaccurate pieces of equipment.
They were also subject to extreme operator error, if not
operated correctly. Robert Borkenstein of Indiana
patented the best of the early devices in the early 1950's.
The device was called "The Breathalyzer®", and was still
in use in some states (i.e., New Jersey and South Carolina)
up until the late 1990's.
MACHINES
BEING USED IN THE U.S.A. Today, if you submit
to BREATH TESTING in the United States, you will almost
certainly be tested on one of these "infrared" machines
(or "instruments", as police officers are trained to refer
to them):
Intoxilyzer®
5000 or 1400 [portable unit for Batmobile use] series (America's
most widely used breath test machine)
BAC
Datamaster® (America's second most common breath machine)
Intoximeter®
EC-IR (Used in a handful of states)
Draeger®
7410 (German manufacturer that has placed its machine in
about 6 states, so far)
 Each
of these devices has its strengths and weaknesses, and can
be attacked in court by a knowledgeable criminal defense
TRIAL attorney specially trained in fighting drunk driving
cases. All of them utilize INFRARED LIGHT passing
through a sample chamber (where the breath is passing through)
and/or electrically charged "plates" (fuel cell devices)
which attract and "count" ions of alcohol as their "measuring"
tool. Like any "machine", all breath testing devices
are subject to variance, from systematic error, random causes,
or mere sampling variability endemic to all breath testing
devices.
A
troubling trend seems to be emerging in a few states.
Handheld fuel cell devices (which run on batteries) are
being allowed for EVIDENTIAL testing purposes, not just
preliminary screening for alcohol. The devices that
come equipped with an on-board printer CAN provide an evidential
result (i.e., a piece of paper bearing the time, quantity
and other data to introduce as an exhibit in court).
However, the likelihood that these devices could generate
a flawed and unreliable test result is greater than if testing
was conducted on a stable, desktop infrared machine like
those outlined above.
ALL
TESTS ARE SUBJECT TO LEGAL CHALLENGE. Regardless
of whether the result CLAIMED by the state is close to the
state's legal limit (e.g., a 0.083 result in a state having
a legal limit of 0.080) or DOUBLE (or more) the maximum
limit for you state, a trained trial attorney MAY be able
to find a viable explanation about why the machine's results
cannot be trusted.
 IF
IT AIN'T GOOD ENOUGH FOR ALABAMA . .In the late
1990's, the State of Alabama's own "state lab" conducted
experiments on the Intoxilyzer® 5000 devices then in use
across that state. Their findings, basically showing
that substantial error (plus or minus 25%) in the "readings"
could falsely accuse a driver who had an elevated breath
temperature (due to a variety of causes) led to Alabama
abandoning the Intoxilyzer® 5000, and installing (at tremendous
replacement cost) the new German machine by Draeger® which
measures the breath temperature and adjusts the "reading"
DOWNWARD (in favor of the test subject) when the body temperature
is higher than normal. Other states [e.g., NY, NJ,
WI] have also dropped the Intoxilyzer® (or Breathalyzer®)
in favor of the Draeger® machine, or the EC-IR®.
BREATH
TESTS ARE IN NO DANGER OF BEING REPLACED.
States continue to use breath testing due to its easy, non-invasive
(i.e., no blood being drawn), inexpensive and FAST.
This gets the officers back out on the highways to look
for more "drunk drivers". Having an attorney who is
trained to know (and, where appropriate, to attack)
the breath machine's LIMITATIONS and weaknesses is the first
priority if you decide to fight your DUI/DWI case in court.
Helping you FIND A LAWYER with these skills was the primary
reason for starting DUI-DWI.com. Every lawyer asked
to join this web mega site has been screened for trial skills,
reputation as a "fighter" and years of practice, to try
to provide you with a choice of an advocate in your state
capable of analyzing the merits of your case, evaluating
your chances at trial and providing you with "informed"
choices before you proceed to court.
|
