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breath test Tag

07 February
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Yet More Problems with Breathalyzers: Latest Updates

Posted by Clint
in Blog
Yet More Problems with Breathalyzers: Latest Updates

Yet more problems with breathalyzers have emerged in recent news reports from Massachusetts. The stories reveal two different, but sadly common, issues facing defense lawyers and their clients with DUI charges. Improper Calibration of Breathalyzers First, improper calibration of breathalyzers dating all the way back to 2011 was discovered by a group of defense lawyers starting back in 2015. The lawyers learned that the specific model of breathalyzer used by the police was not calibrated to the proper range, affecting the expected margin of error for the devices. This range is narrower than in other states, and the police had not...

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25 December
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Revealing the Flaws in Breathalyzer Testing Procedures in Court

Posted by Clint
in Blog
Revealing the Flaws in Breathalyzer Testing Procedures in Court

As DUI defense attorneys know, drivers may have excellent arguments that breathalyzer testing results should be excluded from consideration in court. Flaws in administering and interpreting breath tests abound. Which Kinds of Flaws in Breath Testing Can Be Shown in Court? The list of potential flaws in breath testing for DUI is long: Incorrect directions were given to a driver who takes a breathalyzer; Miscalibrated breathalyzer device used; Broken or old breathalyzer device used; Maintenance procedures for the breathalyzer were not followed; The specific model of breathalyzer has a fatal design flaw; Law enforcement broke the chain of custody for the results; ...

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08 November
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Even More Problems with Breath Tests

Posted by Clint
in Blog
Even More Problems with Breath Tests

Yes, there are even more problems with breath tests than discussed in previous blogs. From making modifications to the Intoxilyzer, the most commonly used breath testing device, to faking records and altering software, the problems with using breath tests as evidence of driving under the influence seem to never end. A surprising case in Florida from a few years ago showcases how even minor modifications to the Breathalyzer can lead to a strong defense to DUI charges in court. Apparently Breathalyzer manufacturer CMI Inc. did not tell the National Highway Traffic Safety Administration that the company had made seventeen modifications to...

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13 October
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There Is No Reliable Test for DUI Marijuana

Posted by Clint
in Blog
There Is No Reliable Test for DUI Marijuana

It’s true: there is no reliable test for DUI marijuana. While police can observe drivers for signs of impairment, no blood or breath test can show accurately whether a person is so impaired by marijuana as to make driving unsafe. The reason marijuana concentration in the body cannot be tested reliably lies in science. The ethanol in alcohol dissolves in water, and human bodies are mostly water. Ethanol concentration in the body reduces quickly over time. In contrast, the THC in marijuana is fat-soluble and does not dissolve in water. It can remain in the body for weeks. A recent study...

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18 September
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Warrant or No Warrant? Your Rights

Posted by Clint
in Blog
Warrant or No Warrant: Your Rights

Three key Supreme Court cases discuss the need for a warrant when police require a suspect to submit to blood and breath tests. The first addresses the amount of force used to compel a test, and the second two discuss whether a warrant is required for blood versus breath testing in DUI cases. Use of Force and Warrants In the case of Rochin v. California, 342 U.S. 165 (1952), the Supreme Court considered whether police may force a suspect to turn over evidence without a warrant. The facts are harrowing: sheriffs entered a man’s home without a warrant and saw capsules on...

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08 September
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Is It Legal for the Police to Destroy My Breath Sample?

Posted by Clint
in Blog
Is It Legal for the Police to Destroy My Breath Sample?

Charges of driving under the influence implicate legal issues from proper handling of evidence to confessions to warrants. In California v. Trombetta, 467 U.S. 479 (1984), the United States Supreme Court considered whether releasing the air from breath samples after analysis violates the accused’s right to examine any potentially exonerating evidence. Trombetta involved several defendants arrested for driving under the influence, taken to a police station, and given breath tests. After they took the breath tests and the police analyzed and recorded the results, the police opened the breathalyzer chamber and purged out the air inside. The same is done for...

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25 August
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Common Myths about Breath Testing

Posted by Clint
in Blog
Common Myths about Breath Testing

Even law enforcement officers, prosecutors, and defense attorneys persist in believing several common myths about breath testing. This article explains why those myths are incorrect and how the truth could assist in defending a DUI. Myth: Belching and Vomit Do Not Affect Breath Test Results. Some people think that burping, belching, vomiting, and indigestion do not have a significant effect on breath tests results. Science has shown that this idea is fundamentally incorrect. Vomit, gas, and residual mouth alcohol all can contaminate breath specimens, leading to elevated readings of blood alcohol content from a breathalyzer. Mason & Dubowski, Breath as a Specimen...

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10 July
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The “Intoxicating Substance” in Oklahoma

Posted by rainmakeradmin
in Blog
The “Intoxicating Substance” in Oklahoma

Oklahoma’s laws against drunk driving also prohibit driving under the influence of any intoxicating or controlled substance. In this article, learn what these substances are and why driving while using them is akin to driving while using alcohol. Oklahomans using any amount of a Schedule I controlled substance while operating a motor vehicle can be charged with a crime. 47 O.S. § 11-902(A)(3). Some examples of controlled substances are: opiates, LSD, marijuana, amphetamines, heroin, codeine, and more. 63 O.S. § 2-204. Notably, Oklahoma just amended its definition of marijuana to exclude federally approved cannabidiol (CBD) drugs or substances. Oklahoma H.B. 1559...

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30 June
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Devices Used for Breath Tests: Are They Accurate?

Posted by rainmakeradmin
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Devices Used for Breath Tests: Are They Accurate?

Oklahoma law enforcement officers administer breath tests to suspected drunk drivers, but the accuracy of those tests has been questioned repeatedly. Determining whether breath tests are accurate requires an understanding of what device is used, how it works, how it is maintained, and how tests are administered. The breathalyzer used in Oklahoma is called the Intoxilyzer 8000, an older model in use for over 10 years in the state. Breathalyzers like the 8000 work on a light absorption theory. You breathe into the end of the device and your breath is captured in a chamber. A light bulb that emits infrared...

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23 June
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Refusing to Take a Sobriety Test in Oklahoma

Posted by rainmakeradmin
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Refusing to Take a Sobriety Test in Oklahoma

While you may refuse to take a breath or blood test for the presence of alcohol in Oklahoma, there are consequences to refusal. The Oklahoma laws about refusing these tests specify exactly what happens if you refuse one of these two sobriety tests. First, anyone who operates a car or other vehicle on public roads in Oklahoma has given “implied consent” to taking a breath or blood test for alcohol concentration. 47 O.S. § 751. You do not have to be driving a car to give implied consent – if you are sitting in a parked car and your breath smells...

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