How Do You Defend A Blood Or Breath Test Taken At The Police Station?
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A DUI Client
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Interviewer: When someone is arrested and taken back to the police station, are they asked to blow into a breathalyzer or give a blood or urine test?
Aaron: In California they are not doing a urine test unless there is no other test available. They used to have a choice of blood, breath or urine. Now, in California you are given a choice of a blood test or a breath test. Most officers want you to do a breath test because it is quicker. They do not need to bring in a phlebotomist or have a nurse draw blood.
A blood test is usually more accurate because they test your actual blood. A breath test requires a conversion; a mathematical formula to convert a breath ratio to blood. Blood is more accurate. Problems can come up with blood tests and with the machines that determine results. However, most officers do not push someone to do a blood test.
Now after you have done a breath test, the officer is supposed to read you an advisement called the Trombetta Advisement. It says basically the breath test you just gave does not retain a sample that can be re-tested. If you want a sample that can be re-tested you have that right, and you can also get a blood test.
Interviewer: If someone blows a breath test at the station that reads 0.08 or above, is he or she doomed? Is that result defensible?
Aaron: It is defensible because these are machines. All machines are prone to errors. There is also the conversion from breath to blood, and not all people are made the same. They are taking averages when they do this conversion.
Someone a different size with less lung capacity may not be the same as someone who is much larger. That can make a difference. There is a margin of error on breath testing of 20%. We also have rising blood alcohol level defenses.
Then, there are the machines themselves. Most of the machines where I practice in the San Francisco Bay area are Draeger machines. They test using fuel cell technology and infrared technology.
However, in San Francisco they use an archaic machine called an Intoxilyzer 5000. They are using model 68EN, and this machine is very old. It looks like an old, 40-pound typewriter. It is old technology, and they are not getting these machines properly repaired. There are all sorts of issues with these machines in San Francisco.
There are many defenses to the breath test. In many cases, especially when we go to trial or to the DMV, we bring in a forensic toxicologist. This person has a science background and can explain to a DMV hearing officer or jury the problems and issues with breath testing. This person will look at the tests taken in our case and show the burden has not been met by the prosecutor or the DMV.
Interviewer: So are there many defenses, including rising blood alcohol level, the machine used incorrectly or malfunctioning and people’s different physiology?
Aaron: Yes, there is also a margin of error. I could go on and on about the different kinds of defenses.
There is something else very important to look at in a defense. Most people do not realize when you are pulled over for a DUI you may not have fully absorbed all the alcohol in your system. Therefore, you may be higher later on, after you were driving, at the time you are blowing into a machine and doing a breath test.
We can look back at what you had to eat and what time you had drinks. We can look at all that. The law says we are supposed look at your blood alcohol level at the time of driving, not 20 minutes or an hour or two later when you are doing your chemical test.
By Aaron Bortel
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