Breath
Testing Information - What Every Citizen MUST Know
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. See the
fabulous article
by Lawrence Taylor called “The DUI Exception to the
Constitution”, for a historic perspective on this
phenomenon.
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. See
http://www.ga-drunkdrivinglawyer.com/cases/case03.htm
and
http://www.ga-drunkdrivinglawyer.com/cases/case06.htm,
as two examples of cases the author won despite police breath
tests more than double the legal limit.
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
DrunkDrivingDefense.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.
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