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Could A Blood Test Be Given Instead Of A Breathalyzer?


Absolutely. We see this all the time with people who do not have very strong lung capacity or who are smokers or people who just will not comply in blowing into the breath machine. If the officer is not able to get the two results they need on the evidential breath test, they would tell the person they were going to write them up for the refusal unless they did a blood test because clearly they were unable to comply with the breath test. Sometimes, officers would just tell the person they had given them a chance, but since they did not comply with the breath test so they would just write it up as a refusal and not even do a blood test. They would typically do the blood tests when someone would not or could not give a sufficient sample to get a result or to get two results on a breath test. Also, they would usually not want to do a breath test if someone was injured, taken to the hospital or if they had a cut in their mouth, on their lip, in their gum or on their tongue needing stitches or something like that, because the person may be unable to blow into the machine or they might even be bleeding. In this case the officers would not want them blowing into the breath machine, because that would obviously potentially create a false positive.

How Often Are You Able To Refute The Breathalyzer Test When Building A Strong Defense For Clients?

Depending on which machine it was, a breath test machine would generally be tough to flat out beat most of the time because they would rarely be taken out for maintenance. We sometimes see invalid sample readings and sometimes we would see ambient air readings but they would usually be in compliance because the machines would be tested, depending on which county it was and which police agency was in charge of and using that machine. In some areas, it would be more likely they were not checking the equipment and doing the calibrations every 150 tests or typically every 10 days, especially with the preliminary alcohol screening machines, which I see more often than the evidential machines which might not have been tested every 10 days. Sometimes, we are able to find problems with the machines, sometimes they might have been taken out of service after the test was given but more often than not, the machines would actually be working properly. This is one of a number of defenses we have, and if that was our best hope and the odds were against us then it would always be worth looking at the machines, looking at their records and maintenance calibration records, station logs if they existed, memory chip records if they had one for that type of machine and then the prosecution would have to prove that the machines were working properly and that they were administered properly.

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Aaron Bortel

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