Breath & Blood Tests

Jurors love scientific evidence. That’s why prosecutors know that they have a stronger case with either a breath or blood test. But that in no way means your case is not subject to attack. There are many flaws with the results, and our office knows what those flaws are and how to expose them while fighting your DUI case.

California’s “Implied Consent Law” (Vehicle Code §23136(c) and 23612) states that anyone who obtains a driver’s license is automatically consenting to the following:

If you are under 21, you must provide a breath sample upon a lawful detention (ie in the field while driving) to a peace officer upon request. You are also required to give a breath or blood test (or urine if drugs are suspected) upon a lawful arrest.

If you are 21 or over, you must provide a breath or blood sample (or urine if drugs are suspected) to a peace officer upon a lawful arrest.

Failure to do these things could constitute a lengthy suspension of your driver’s license by the Department of Motor Vehicles, as well as additional punishment from the Court.

BREATH TESTS
There are several breath machines used by law enforcement officers. The Preliminary Alcohol Screening device (PAS device) is used by most officers in the field or at the location of the traffic stop. Typically, this device is only used to assist the officer in making a decision as to whether or not to arrest someone. However, both the courts and the DMV will look at this evidence to determine whether or not alcohol was in fact involved in the case, whether there is corroboration of a later breath or blood test, and whether the arrest was lawful.

Common breath machines include the Draeger, the EC/IR, the Intoximeter, and the Datamaster. These machines all have different ways of operating and different flaws. It is important that your attorney is aware of those flaws and how to spot and point those things out to jurors, prosecutors, and judges. For instance, a knowledgeable DUI lawyer should know about:

  • Partition Ratio
  • Retrograde Extrapolation
  • Burn Off Rate or Elimination of Alcohol
  • Radio Frequency Intereference
  • Operator Errors
  • Technology Flaws Within the Device
  • Other Types of Alcohol Interferents
  • Slope Detectors
  • Possible Medical Issues Affecting the Cases (ie GERD – Gastro Esophageal Reflux Disorder; Acid Reflux)

Our office is fully aware, educated, and prepared to exploit these problems while fighting your case.

BLOOD TESTS
Although generally more reliable than a breath test, blood tests still present significant issues for prosecutors if properly attacked.

It is imperative that the blood vial used by law enforcement has the proper amount of preservative in it to ensure that the blood test result is accurate. We have access to our own forensic chemists and experts who can retest the blood sample, if necessary, AND the test the amount of preservative in the vial to ensure the result is accurate. Additionally, we will examine the records to ensure the testing machine which generates the result was properly functioning and operational. There are several areas ripe for cross examination upon a phlebotomist or officer who obtains a blood sample.

With either breath or blood tests, one major problem is that the result is based on assumptions which the prosecutors’ witnesses have generated in the machines. In other words, they create the baseline which serves as the measurable amount to determine if a person is under the influence, and then they attempt to come up with a ratio which calculates a person’s BAC (blood alcohol content) at the time of driving based on their own assumptions! These machines are calibrated in whatever way the prosecution witnesses want them to be calibrated – and from there, they can obtain a result which is supposed to show “beyond a reasonable doubt” that a person was driving under the influence (DUI)!

Why Us? There are many things that need to be done to accurately, thoroughly and aggressively defend someone in a DUI case (such as checking the accuracy of the breath testing machines used, retesting the blood sample if one was provided, examining the police officer’s radio transmissions to test the accuracy of their reports, visiting the scene or checking maps of the arrest location, checking the location where the field sobriety tests (FSTs) were conducted), and our office will do all that we can while we fight for your rights!

Do not just plead guilty to “get it over with”. You have rights – and a DUI conviction can be detrimental to your professional career and personal rights. Hire a lawyer that truly cares and can fight for you! We are here for that reason!

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