In a previous post, Sargent Sam had just made a really bad decision. Although he was not drunk, those Mexican beers were definitely enough to give him a buzz. When it comes to the “blow or not to blow” choice, some might point to one of those impairment charts which purport to connect the number of drinks with a BAC score. These charts only apply to Joe and Jane Average, so they are pretty much useless.
Many people, including some DUI defense attorneys, believe that it is usually a good idea to take a Breathalyzer test. There is an old saying that when you fall into a hole, the first thing to do is stop digging. Sam is already in a hole. It is time for him to start working his way out. Plus, nothing good comes after a refusal. That refusal will be used against Sam in court. In the minds of many Chicagoans, a test refusal is basically an admission of intoxication.
Other people point out that the conviction rate in test cases is close to 90%, and the conviction rate in non-test cases is about 45%. In other words, taking a test is essentially handing the prosecutor the evidence needed for a conviction, and prosecutors do not need your help in this regard. Furthermore, Sam’s license will be suspended whether he takes the test or not. The suspension period is just a little longer in refusal cases. Finally, even if Sam “passes” the test, the officer can, and probably will, arrest him for DUI.
For some, the deciding factor is that Illinois does not have a refusal-to-submit law. Other states, such as Florida, have passed laws making test refusal a misdemeanor. So, if we were in the Sunshine State, Sam could still go to jail even if he beats the DUI.
Challenging the Breathalyzer in Cook County
If the jurors understand two key facts about the Breathalyzer, they are much more likely to question its results. These questions often create a reasonable doubt, and that is all the defendant has to do.
The Breathalyzer is not high-tech equipment. The police tech will try to convince the jury otherwise, with fancy talk about fuel cells and particle conversions. Essentially, the Breathalyzer that Sam blew into is just like the Drunk-O-Meter from the 1950s. If you had to watch the Super Bowl on an I Love Lucy-era black and white TV, you might just decide to give the cat a bath.
Furthermore, the Breathalyzer does not measure blood alcohol content, which is what the law requires. Instead, this gadget measures breath alcohol content, and then estimates BAC based on that reading. Any time there is an extra step, there is a greater possibility for error. Some of these errors include:
- Unabsorbed Alcohol: If Sam had been drinking within the last hour or so, the alcohol will be on his breath but not in his blood, because the liver has not processed it yet. So, the BAC extrapolation may be artificially high.
- Acetone Levels: The same result occurs if the defendant has higher-than-normal acetone levels in the body. That is quite common among smokers, diabetics, and other groups of people. One Breathalyzer flaw is that it falsely registers acetone as ethanol.
- Mouth Alcohol: If the defendant belches or burps within 15 minutes of taking the test, the mouth alcohol level, and therefore the breath alcohol level, will be artificially high. Chicago officers are supposed to monitor defendants to make sure they do not burp or belch. Courts have relaxed this requirement over the years. Now, there is almost no monitoring at all.
An attorney often partners with a degreed chemist, or at least a graduate student, to drive home these flaws to the jury. In contrast, the police “expert” is usually a Breathalyzer tech whose only knowledge may come from police-sponsored seminars. Who is the jury more likely to believe?
Contact Aggressive Attorneys
There are very few absolute rules in life, but here is one: If you drive, do not drink and if you drink, do not drive. For a confidential consultation with an experienced criminal defense lawyer in Schaumburg, contact Glasgow & Olsson.
(image courtesy of Thomas Picauly)