Monder Law Group - News
CAN YOU ALWAYS RELY ON THE PRESENTED SCIENCE?
Driving Under the Influence (DUI) charges carry with them the possibility of both jail time and the loss of driving privileges. As with any criminal case, a DUI defendant makes a major mistake if he attempts to make their way through the system without an aggressive criminal defense lawyer to stand up for their rights. This means assessing ALL aspects of the DUI arrest. This post will focus on the accuracy (or lack thereof) of breath tests.
In San Diego, a blood alcohol content of 0.08 or higher is ground for a DUI. But how is that measured? And is it always accurate?
There are three methods of BAC testing normally used in California, the most accurate method being a blood test. However, blood tests are inconvenient and invasive; a blood sample must be drawn from subjects’ veins in a hospital or clinical setting. As a result, breath tests using handheld devices, also called “breathalyzers” and “preliminary breath testers” (PBT), are employed in the field by law enforcement to assess BAC because they are lightweight, portable, and easy to administer. Easy to administer means easy to charge someone with a DUI, but it does not necessarily mean accurate.
Photo Courtesy of Mesa, AZ DUI Laywers
Factors that Can Affect Breath Test Accuracy:
Nevertheless, one should always be aware that a Breathalyzer is a machine that can be influenced by outside factors if the user is not careful. Here are just a few than can potentially cause errors (that could result in a DUI charge against you):
- Foreign Substances – Substances present in the mouth that contain alcohol can produce false positives because the amount of alcohol vapor they emit may be greater than the amount exhaled from the lungs. For example, some mouthwashes, breath fresheners, and toothache medicines contain alcohol and can skew readings.
- Calibration – Breathalyzers must be calibrated periodically and batteries must be replaced in order to maintain accuracy.
- Software – Breathalyzers run on special software, just as computers rely on operating systems, which can result in occasional bugs and glitches.
- Human Error – As easy as breathalyzers are to use, they still require some attention to detail.
- Consistency – To ensure accuracy, breath tests should be performed multiple times to produce a reliable result. Breathalyzers that utilize fuel cell sensor technology provide the most reliable and accurate results in repeated tests.
- Environmental Factors – False results can be triggered by the presence of paint fumes, varnish, and chemicals such as plastics and adhesives.
- Mouth Alcohol – If a person has alcohol present in their mouth, this can throw off the breath test result dramatically. Alcohol can be caught in chewing tobacco and even in dentures or other dental work. Mouth alcohol can also be a result of vomiting or belching, or a breath spray or mouthwash.
So How Am I Protected Against This Inaccurate Machine?
Your biggest strength is the skilled San Diego criminal defense attorney you called. A knowledgeable criminal defense attorney will know what challenges to bring up and when to make those challenges. A knowledgeable criminal attorney will know to instruct the jury of your peers that:
- The particular machine utilized for analysis of the breath sample was in proper working order at the time of the test;
- The breath test was properly administered and proper procedures were followed; and
- The operator was properly trained, competent, and qualified. If the prosecution has not unanimously convinced you beyond a reasonable doubt of each of these three preliminary facts, you must disregard the breath test.
Contact Monder Law today for a free San Diego DUI attorney initial consultation regarding your case. Vik Monder represents clients in throughout San Diego.