Why DUI breathalyzers may be wrong, very wrong!

There are many reasons why a breathalyzer may be wrong.

In general, there are two kinds of breathalyzers, handheld (PAS) and large electic breathalyzers found at police stations (Usually Datamaster 2000).  The handheld models are not very accurate and Judges may even throw out their results if your attorney can convince the Court they are inaccurate or "junk science."

The large breathalyzer used at most police stations have many imperfections. 

Even if the Breathalyzer says you blew a .08 it could really be  a .03!   Here's how:

If you are small or a female your lungs are about 15% smaller than average.  The machine does not know this and thinks everyone is "average."  This brings a .08 down to about a .06

If you got pulled over late at night your breath is hotter than first thing in the morning.  The machine does not know this and your warmer breath fools the machine and therefore the actual BAC may be .05 or thereabouts.

The law in this case is Title 17 in California.  In Title 17, the law states that the breathalyzer machines have a margin of error of .01, (however our expert toxologist has evidence that it is closer to .02 margin of error).  Now we are at .04...

Finally, most people try to fool the breathalyzer by blowing into the tube very softly.  Then the policeman will tell you to blow hard or he will arrest you for a "refusal."   If you then blew hard this fools the machine and brings up deep lung air, where most of the alcohol residue is stored, giving the machine a higher reading that is correct.   That's how a .08 is really a .03!!!!!!!!! 

There are also many other factors that can fool a breathalyzer including heartburn or a medical condition known as GERD, soy sauce, recent dental work, food trapped in your teeth, mouthwash, or even burping, hiccuping, voming, eating or drinking water prior to your test.   If you want more information about your particlar situation, call me now!  

17 IMPORTANT  U.S. SUPREME COURT CASES 

AFFECTING DUI CASES IN CALIFORNIA

The "Supremes" have been very active in DUI and other cases that effect DUI and DMV cases.  Here are some of the most important ones.  

Bell v. Burson

Normally a driver's license is considered "a privilege — not a right", and there were few remedies available to a driver who wished to contest a suspension.

However, the U.S. Supreme Court changed that, and stated  that a license's "continued possession may become essential in the pursuit of a livelihood".  They "are not to be taken away without that procedural due process required by the Fourteenth Amendment".

Berkemer v. Mc Carty

The Supreme Court is called upon to apply Miranda to a drunk driving case: When is a suspect "in custody" for purposes of determining whether the Miranda warnings must be given before questioning?

Clearly, a DUI suspect is not free to leave once he has been stopped and detained roadside — and certainly not when he is ordered to perform field sobriety tests. Unfortunately  the Court refused to provide any clear guidelines to the DUI stop/detention situation.

Blanton v. North Las Vegas

Does a defendant charged with drunk driving have a right to a jury trial? Not necessarily, according to the U.S. Supreme Court. In Blanton, the Court held that a citizen has a right to a jury trial only for "serious offenses", not for "petty offenses". Basically, an offense punishable by six months in jail or less is a "petty offense",  except in rare cases where additional statutory penalties indicate a legislative intent to consider the offense a "serious" one [such as license suspensions, fines, schools and ignition interlocks?]. Note: In California, you do have a right to a jury trial for a DUI.

Bray v. Maryland

The landmark case requiring the prosecution to produce upon request any evidence that is "material" to the issue of guilt.

See also, Arizona v. Youngblood  where the Court held that it is a violation of due process for the prosecution to destroy evidence "in bad faith" which although not "clearly exculpable" was nevertheless potentially useful.

California v. Trombetta

Where a breath test is given by the police, the sample is captured in a test chamber, analyzed and purged out of the machine and into the air; nothing is saved. Since there is relatively cheap technology available to save such breath samples for later re-analysis by the defense, does the purging of the sample and the failure to preserve it constitute willful destruction of potentially exculpatory evidence? No, said the Supreme Court, reversing the California Supreme Court: the destruction was "not a calculated effort to circumvent the disclosure requirements established by Brady v. Maryland", and, more importantly, the defense failed to show that the breath sample would have had an "exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other available means."

Crawford v. Washington 

In a prosecution of a man accused of stabbing another man who raped his wife, the prosecution played a tape recording of the wife describing the stabbing. The defendant objected on the grounds that he could not cross-examine the woman, but the trial judge found the tape recording to be "reliable" since it had been taped by the police and admitted it for the jury to hear. The Supreme Court held in a 9-0 opinion that this is a violation of the U.S. Constitution's Sixth Amendment right to confrontation ("in all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him.").

This decision may be important in DUI cases, where judges have commonly permitted prosecutors to introduce police reports in lieu of the testimony of the police themselves.


Gideon v. Wainright

This landmark case dealt with a defendant charged with a felony who was broke and requested the Court for a public defender.  The request was refused since state law provided for PD's only in capital cases. The defendant tried to defend himself at trial, and was quickly convicted.  The Court stated that the Sixth Amendment right to counsel applied not just to federal courts but to the states through the Fourteenth Amendment, and this "right to counsel" included the right to one even if one could not be afforded: "lawyers in criminal courts are necessities  not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours."  

Unfortunately, the PD's in California are so overwhelmed with cases that they cannot give a lot of attention to any single case.

Kumho Tire v. Carmichae

The Federal Rules of Evidence, (FRE 702) permits an expert to give his opinion "if scientific, technical, or other specialized knowledge will assist the trier of fact..." In this case, the trial judge excluded expert opinion testimony as to tire design because he found it unreliable.

The issue on appeal was: Does Rule 702 apply only to "scientific" matters?

The Court decided that a trial judge's "gate keeping" function is not limited by 702 to scientific matters, but applies to all expert testimony.

Since most states model their Evidence Codes after the Federal Rules, this decision was important in how state courts would would limit expert testimony including drunk driving cases, where "expert" testimony (such as by the police officer) on such non-scientific matters as "field sobriety tests" is quite common.

Mapp  v. Ohio

Landmark case in which the U.S. Supreme Court established the "Exclusionary Rule" by holding that "all evidence obtained by searches and seizures in violation of the Constitution is, by [the Fourth Amendment], inadmissible in a state court."

This applies to  a DUI case since, the remedy for an officer stopping, detaining or arresting a suspect without sufficient probable cause would be suppression of all subsequently-obtained evidence: observations of appearance and behavior, field sobriety tests, breath test results, etc.  In other words, a "bad stop" usually results in the case being thrown out.

Michigan v. Sitz

In a 6-3 decision, the Court appeared to have forgotten about the Constitution and instead focused on the nation's drunk driving problem: "No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it....the weight bearing on the other scale—the measure of the intrusion on motorists stopped briefly at sobriety checkpoints—is slight."  Though California has these checkpoints all over the place, they must be "advertised" ahead of time for "notice".

Miranda v. Arizona

One of the few cases everyone seems to know, the Court required that any "custodial interrogation" (questioning after arrest) must be preceded by the now-famous "Miranda warning" (the right to remain silent and the right to have counsel present). Failure to so advise will result in suppression of any statements made after the warnings should have been given.

In DUI cases, most questioning usually takes place at the DUI traffic stop (considered a non-custodial interrogation);  it is not uncommon, however, for the police to continue asking questions in the police car or back at the police station during breath testing.

Montana v. Kurth Ranch

Defendant was charged with selling marijuana; and then charged civilly for a failure to pay a tax on the weed.

The Supreme Court held that it was a violation of the Constitutional prohibition against Double Jeopardy: The fact that one proceeding was criminal and the other civil did not matter, the Court said, as long as they both involved the same offense and both were intended as punishment.

This case has repeatedly been cited in DUI cases as authority for the proposition that the State cannot both criminally prosecute for driving with over .08% blood alcohol and civilly suspend the individual's driver's license for the same offense.  This will not matter in California, though.  Although there have been US District court decisions taking this position, to date most state courts have not accepted this reasoning and the U.S. Supreme Court has not addressed the issue in a drunk driving case.

Morisette v. United States

In a case involving a theft where the intent to steal was legally presumed from the conduct of removing the property, this decision established that "conclusive presumptions" are a violation of the presumption of innocence and takes away from the jury the function of factually determining the elements of the offense. Presumptions pop up constantly in DUI cases today: defendants are presumed guilty if their blood-alcohol was over .08%; the blood-alcohol level at the time of testing is presumed to be the same at the time of driving if taken within three hours (despite scientific evidence and common sense to the contrary). In each situation, however, the presumption is rebuttable — that is, the jury can disregard it in view of other evidence.
It should be noted- were it not for this case, the government would undoubtedly make these presumptions conclusive — that is, the jury must follow the legal presumption even if the evidence clearly contradicts it, which would be a travesty of justice.


Pennsylvania v. Muniz

After his arrest, a drunk driving suspect was given field sobriety tests at the police station. Some of these included questions like "Do you know what the date was of your sixth birthday?"

The Supreme Court decided that this constituted "testimonial response to custodial interrogation" and, since a Miranda warning had not been given, was inadmissible in trial.

The court distinguished between questioning to determine the manner of speech (slurred) and the content (what was said).

Applying this case to California  DUI cases, "divided attention" field sobriety tests ("Stand at attention with your eyes closed and tell me when 30 seconds have passed") should be similarly inadmissible without Miranda warnings.

Rochin v. California

Suspect swallowed drugs to get rid of evidence, whereupon police hit him and jumped on his stomach to make him throw up the drugs; at the hospital a physician forced an emetic through a tube into his stomach.

The Court determined that this conduct violated defendant's 14th Amendment right to Due Process. "Due Process" is a vague term, but it prohibited "conduct that shocks the conscience." In California , it is rare for police to use violent means to obtain a blood sample from a resisting DUI arrestee, since they will just call it a "refusal" and you will lose your license for 1 year.


Schmerber v. California

At a police officer's request and over defendant's objection, blood was withdrawn from a DUI arrestee while he was being treated at a hospital for injuries from an accident. The court decided that the privilege against incriminating oneself applies only to oral and written communication or testimony, not to physical evidence, and blood tests are not due process violations if taken under humane and medically accepted circumstances.

South Dakota v. Neville

If a DUI suspect refuses to submit to breath or blood alcohol testing, is it a violation of the 5th Amendment privilege against self-incrimination to use that refusal as evidence against him in trial? After the South Dakota Supreme Court held that it was a violation and thus inadmissible, the U.S. Supreme Court reversed, saying that a refusal was a matter of free choice, not compulsive and therefore admmisable.

Can the Police take your blood without your consent?

CAN THE POLICE TAKE YOUR BLOOD WITHOUT YOUR CONSENT?

Under California law, they can.  But a new Supreme Court case says, maybe not.  In that case, the police in Missouri took blood after a DUI stop from a man that would not consent.  The evidence was eventually suppressed by the US Supreme Court.  See link below:

http://richmondregister.com/crime/x730863257/Warrant-needed-for-blood-test-in-most-cases

Bottom line, if you refuse to take a blood or breath test (not a portable breath test) most police offices in California will not force a needle into you.  Instead, they will say you "refused" and you will lose you driver's license for 1 year.   If the police believe you are drunk, they will still give you a DUI.