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posted on 11/5/17

Criminal cases are often fact-intensive. If a defendant provides a chemical sample and the sample is substantially above the legal limit, the best lawyer on the planet would be hard-pressed to defend the matter, unless there was another issue like lack of reasonable suspicion for the stop.

However, if the result is only slightly above the legal limit, perhaps .09 or .10, the legal landscape is dramatically different. In many of these cases, it may be a good idea to take the matter to a jury trial and force the state to prove guilt beyond a reasonable doubt because in many cases, that is almost impossible for prosecutors to do in borderline cases.

Breathalyzer Flaws

Because peace officers need search warrants to extract blood samples and many of them do not want to take the extra step, nearly all DUI test cases involve breathalyzers.

Juries usually respond well to analogies, and a good way to start is to compare a television set and a Breathalyzer. The TV set in your living room today bears almost no resemblance to the ones in 1950s living rooms. The difference is not just cosmetic because today’s TV sets use a different technology that delivers much better results. Put simply, if you could watch your favorite sporting event on an I Love Lucy-era television or a new 3D HD television, which one would you choose?

Yet the Breathalyzers that most officers use today, aside from the fact that they have a few more bells and whistles, are almost exactly like the ones that first appeared in 1954. Engineers have worked hard over the years to eliminate the flaws in those early TV sets, but today’s Breathalyzers still suffer from the same issues that plagued the early ones. Some of these issues include:

  • Mouth Alcohol: If the defendant vomits or belches even slightly in the 15 minutes prior to the test, mouth alcohol level is drastically elevated. When the Breathalyzer converts breath alcohol level to blood alcohol level, the extra mouth alcohol inflates the result.
  • Acetone Levels: Smokers, certain dieters, and diabetics have high acetone levels in their bodies, and Breathalyzers usually report this natural bodily substance as ethanol.
  • Unabsorbed Alcohol: Absorption rates vary, but it usually takes at least an hour for the body to metabolize one drink into the bloodstream. Therefore, if the defendant had a drink recently, and that is often the case, the Breathalyzer result is often inaccurate.

Defendants have another advantage in addition to these inherent flaws. Prosecutors usually call Breathalyzer techs to the stand to introduce the results. These techs often only have a few hours of training. A defense attorney can partner with a full-time chemist or at least a chemistry grad student, and such testimony often carries much more weight with the jury.

Blood Tests

These chemical tests are much more reliable than Breathalyzers, but even blood tests are not completely unassailable.

Because the sample is still available, a defense expert can examine it and reach an independent determination as to the results. Juries understand that the quality of blood test facilities varies significantly. If the prosecutor’s results come from a small clinic or hospital ER and the defendant’s results come from a much larger and more reputable blood test laboratory, which set of results would you trust?

Count on Tenacious Lawyers

Chemical test DUI cases are not unwinnable. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Aidan Brown)