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More Breathalyzer Test Challenges Underway

by | Aug 15, 2013

The Arizona Supreme Court recently granted approval to DUI defendants who wish to present evidence to a jury that variables such as one’s body temperature, that make it nearly impossible to get a precise blood-alcohol measurement using modern breathalyzer devices.

D.C. DUI defense lawyers recognize that while this certainly isn’t the first challenge breathalyzer have faced, we’re closely watching to see how the courts rule in these cases, as the precedent could be important.

Here in D.C., we know all too well how faulty these devices can be. The machines were forced on a three-year hiatus here in the district, after it was revealed that the machines used by Metro police officers were improperly skewing results to reveal blood-alcohol results to higher levels. The district only brought back the devices in September – along with stricter DUI enforcement measures – promising that these new devices were better-calibrated and the program would have better oversight. That came only after the district paid about $370,000 to settle civil lawsuits brought by some 20 drivers who had been convicted with evidence from the faulty machines.

Of the 400 or so drivers affected, only 50 challenged those findings in court. Two ultimately had their charges tossed.

Similar challenges to the use of these machines has been met with fierce resistance, both from law enforcement officials who claim the devices work just fine, and manufacturers of the device, who claim they can’t reveal more about its inner-workings (which might reveal flaws) because such details are “trade secrets.”

In Arizona, the Supreme Court justices ruled unanimously in favor of the defendants. The justices rejected an argument made by the city attorney’s office in Tucson that variables that could impact a breathalyzer reading were irrelevant.

The case was brought about by a defendant arrested for DUI in 2010. He was charged with driving while “being impaired to the slightest degree.” Based on breathalyzer test results, prosecutors also charged him with driving with a blood-alcohol level of at least 0.08 percent. In Arizona, the state presumes that anything under 0.049 percent BAC is not under the influence, but there is a gray area regarding blood-alcohol readings between 0.05 percent and 0.079 percent. In these situations, juries are able to use “other competent evidence,” such as an officer’s observations or field sobriety test results, to determine one’s guilt.

The defense team argued that a variable such as body temperature could alter one’s BAC reading by as much as 8 percent, meaning that this defendant, who blew a 0.08 percent BAC, might not have actually been legally intoxicated at all.

This ruling doesn’t automatically mean the defendant won’t go to jail. Now, the case will go back to the trial court. It also won’t be enough for the defense team to simply assert that the machines can be unreliable. It will have to provide specific evidence showing how this particular defendant’s unique physiology and/or the environment that night may have differed from the presumptions the machine makes.

If you are facing DUI charges in D.C., contact the Scrofano Law, PC at 202-765-3175.