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What Evidence Can Be Used To Refute Breathalyzer Tests?


In regards to the breath machine specifically, we are looking at other records of people that were tested on those machines too. We look to see if there is something called a RFI, which is Radiofrequency Interference that comes from different machinery, like computers, radios, and other electronics. We have electronics all over our bodies, in our cars, in our jails, testing rooms and holding cells. Everything around us is high-end technology these days, so if we see that, that can be a sign that the results may be compromised. If you can just show these results are compromised, because either before or after your test was done, the person before had this same issue, that might be enough to help win a case, or charges reduced.

We request calibration records, maintenance records, station logs, we want to see the history of the machine, and we want to see what is going on with the simulator solution. Sometimes we dig deeper and get information on the simulator solution used, sometimes if we are going to trial, we might want to look into the actual thermometer that was used to test the simulator solution, and make sure that it was properly calibrated as well. I mean we can dig so deep, depending on how far a case is going especially if it goes to trial. We want to know everything, but these machines, when they go out of service that can make a big difference, so we check that out as well.

We also check the qualifications of the staff. There have been situations all over the country where someone is supposed to be doing this testing, checking these machines, their accuracy, and they fake it. When that happens, that can compromise almost every breath DUI case. Therefore, there is a lot of digging that can be done. Sometimes, certain things come up when we get records that are red flags, and make us dig further.

The other thing is we obtain video, we ask for video and sometimes we will get video of the actual breath testing administered at the station, and we can see if the officer is actually operating the machine properly, or giving proper instructions, or even giving a proper admonition. This is something that comes up a lot with refusal cases. We often need video to show that the person, who the officers put in the police report, was properly admonished and told what would happen if they refuse the test, and then they were read the admonishment, and they still refused to blow into the machine, or give a blood test. Now there are going to lose their license for a year, because allegedly they refused to do a test. If we have video, we might be able to show what the officer put in that police report was not accurate, and that the person was not properly admonished, so that is another issue.

What Are The Common Errors That You See In A Breathalyzer Test?

For breath testing, there are errors involved. I do not think there is one common error. I would say that if someone is not fully absorbed, and they are taking a reading while they are still absorbing the alcohol, they need to wait, do not test them right away. Sometimes, there can be problems with machines they have not been properly calibrated, maintained, or they have been taken out of service shortly after the subject’s test.

The machines in San Francisco have never been sent for service. That is one of the problems they have there. One of the ways that we can go after these machines is because no one is qualified to repair these machines. All they keep doing is changing the simulator solution used to calibrate these machines. Now that scenario has issues. I have a case where the machine reads high, the simulator solution is at 0.10%. In addition, every time they test this machine, it reads 0.104%, or 0.106% or higher. I have a case that is borderline, and I was able to talk with the prosecutor and get the charges reduced.

This is a case where my client blew at a 0.20%, which carries a much higher penalty when you are higher, and we were able to turn what was a nine-week class into a nine-month class into a three month class, and get other penalties reduced. We did not make that thing go away, because it was just slightly high, but by checking the records of these machines, we found that there was something going on here and the prosecutor said to me, and this was just the other day, they said, “You’re always the one that finds these problems with these machines”, and I said that is because I am the only one who checks them in all my cases. The prosecutor started laughing, “You’re right”. By doing a thorough background on these machines, even though most of the time it is not what is going to make or break the case, but you just never know.

Sometimes, it is just enough to get charges reduced, and that can make a big difference. In that case, it did. However, many different things can go wrong. Again, sometimes they will take these machines in the field and then bring them back, and the transporting of these machines can lead to problems. We want to see if we can find records of when they were moved, and look at what the future calibrating and accuracy checks look like after they have returned to their original resting spot.

For more information on Refuting The Breathalyzer Tests, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 523-7878 today.

Aaron Bortel

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