DUI tests can be weighed...

bajafox

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http://m.apnews.com/ap/db_15980/contentdetail.htm?contentguid=TKwW6knZ

Calif. high court: Breath test accuracy can vary
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CA State Wire
PAUL ELIAS
Published: 26 minutes ago

SAN FRANCISCO (AP) - The California Supreme Court has joined a handful of other courts in the country that have said Breathalyzer results mean different things for different people and ruled that suspected drunken drivers can attack the test results in court.

Defense attorneys lauded Thursday's unanimous ruling for deferring to science, which has shown for years that the test results are highly variable. Prosecutors, however, predicted the move will undermine California drunken driving cases.

At issue is how authorities use booze breath to determine how much alcohol is in the bloodstream.

When consumed, alcohol is absorbed in the blood and carried through the brain to the liver and heart before diffusing in the lungs, where it is exhaled in breath.

Authorities now use a nationally accepted scientific formula known as "Henry's law" to convert the amount of alcohol vapor in the lungs to a blood-alcohol level.

The scientific problem is that breath-to-blood ratios vary greatly throughout the population and fluctuate individually, influenced by such factors as body temperature, atmospheric pressure, medical conditions and the precision of the measuring device.

That means the same breath-test result for one person's breath could signal intoxication while for another it could simply mean "just a glass of wine with dinner, officer."

Compounding the matter are California's two distinct driving under the influence laws.

The first law, which has been on the books for decades, requires proof that a driver was intoxicated such as slurred speech, bloodshot eyes and the like. Jurors are told they can presume someone is drunk if blood tests show at least a .08 percent level of alcohol.

The second law, passed by the Legislature in 1981 and updated in 1989, simply defined a drunken driver as someone with a blood-alcohol level of .08 percent regardless of appearance or behavior. The state Supreme Court in 1994 extended that definition to include Breathalyzer results, barring drivers charged with the second law from attacking the variability of the breath tests.

Since then, most DUI attorneys viewed disputing Henry's law as a dead end for challenging breath-test machines.

Prosecutors routinely charge their clients with both versions of the law to increase the chances of conviction.

Defense attorneys and prosecutors agreed the state Supreme Court ruling on Thursday reopened the door to breath-test challenges. The court said evidence of the variability of tests can be shown to juries.

"Defense evidence is relevant to rebut the presumption that the defendant was intoxicated, but not to remove the presumption altogether," Justice Carol Corrigan wrote for the Supreme Court.

Courts in Arizona and Vermont have made similar rulings, she said.

Prosecutors said the California ruling will seriously hamper their ability to win convictions in driving under the influence cases.

"It will confuse jurors," said Margaret O'Malley, a Santa Barbara County prosecutor who represented the California District Attorneys Association before the high court.

Defense attorneys said the ruling confirms in court what science already knew: one-size-fits-all breath tests don't necessarily reflect reality for all suspects.

"I've had clients with one lung," said Steven Oberman, a Tennessee lawyer and founder of the National College for DUI Defense, explaining such people will naturally have more alcohol vapors in their breath than someone with two lungs.

To make its ruling, the California Supreme Court used the case of Timmie Lance McNeal, who was convicted in San Bernardino County of drunken driving. He appealed in 2007, arguing that he was improperly barred from challenging the breath test.

The Supreme Court agreed that McNeal was wronged by the trial court but chalked it up to "harmless error." The Supreme Court said there was abundant evidence other than the breath test to support the jury's determination that McNeal was guilty of drunken driving.
This may belong in purple but I'm pretty sure it has been discussed before. I think there is a big difference between a 150lb me who has a high tolerance compared to a 300lb somebody else who has no tolerance.
 

michael_loomis

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Problem is.. 150lb you with high tolerance vs the latter, doesn't make a difference on a breathalyzer.

A blood test would be WORSE for you than a 300lb guy with no tolerance. Only advantage a high tolerance makes is the physical tests.
 

bajafox

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That is where this part of the "law" comes in

The first law, which has been on the books for decades, requires proof that a driver was intoxicated such as slurred speech, bloodshot eyes and the like. Jurors are told they can presume someone is drunk if blood tests show at least a .08 percent level of alcohol.
I've been pulled over a few times (2 or 3) because they thought I was under the influence, each time I most likely would have blown higher than .08 but I aced the field sobriety test. Only once did the officer decide to give me the breathalizer and after I confessed I would not pass it because of the amount I consumed that night, he insisted I take it. I blew a .0667 and he sent me home. He told me I did very well in the field sobriety, according to the above quote, that alone should have been proof enough that I wasn't intoxicated.

The point is there are people out there getting DUI's who shouldn't...
 

la2baja

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On topic, quick personal story. I caught a DUI many years ago and was screwed by system that knows the routine better than I did. Being honest here not the average "every guy in prison is innocent speech".

I was pulled over having had 2 cocktails in 4 hours. I am a regular drinker so felt nothing of the 2 drinks.
I was pulled over for speeding and was given a standard road side test. I had 2 drunks riding in the car giving the CHP probable cause.
I willingly took the the test and passed 4 quick and simple parts of the road side test with no issue.
I was asked to take a Breathalyzer and agreed.

This is where it gets tricky and everyone can learn from this!

I blew twice, never seeing the results (MY MISTAKE!!)

CHP played good cop routine and said "You are right on the limit and you seem fine so we would like to use a better Breathalyzer at the station so you can be cleared and go home." I also agree. They offer to tow my car at no expense to me and are willing to wait with me until a flat bed arrived so I could see that my car was safely taken away (Fancy car at the time). We waited for a total of 2 hours before we got to the station and I blew on the machine and Pow! What do ya know I blow right above the legal limit. Booked and shoved in a cell.

My lawyer heard this story and was already worried. He explained to me that this is a typical move by the CHP. I blew below the limit and was not legally impaired but didn't know to see the results. I trusted the cops. Mistake #1. If I had blown above the legal limit they would never risk having me blow a third time on a different machine to show inaccuracy.

The friendly gesture of letting me see my car safely removed gave me 2 more hours for the booze that was in my system to actually show higher on the machine in the station securing their bust.

My lawyer wasn't very surprised when my road side test results did not exactly match up with what actually took place.

The 3 page sheet which the officers describe the test involved several tests I did not take and every test including those I took and passed without issue basically described a fall down drunk and I failed every test. Not just failed but basically I was Charlie Manson by the time the description was finished.

My lawyer and I did all the research on traffic cams and security cams that could be done to catch this on video which would throw the whole case out of court due to the CHPs blatant lies. No such luck. The officers also knew that I wasn't drunk and may have planned to push through the bust because the test was done on the side of their car out of view of their car cam.

My point. Read this and learn something now before it is to late and you (trying to be a good citizen) is taken advantage of.

1. Obviously don't drink and drive.

2. If pulled over drive to a well lit parking lot or near any likely security cam area. Ask to be in front of the cruiser for the test so as to be captured on their cam.

3. If their are any likely witnesses near ask them to stay and get a contact number.

4. See the Breathalyzer numbers every time they make you blow. IT IS YOUR RIGHT! so don't be afraid to ask.

5. Any "friendly gesture" to delay a Breathalyzer test is ABSOLUTELY NOT friendly. You are responsible for being under the legal limit while in the vehicle. A seemingly slim amount of drinks can show up several hours later and an "above the limit citation". A couple of glasses of wine during dinner can do it!

Disclaimer: I am not suggesting that all CHP or cops are dirt bags or crooked. I am friends with several and they are good people. I am saying that their are cops that are crooked and that will manipulate a system they understand and you don't to make a bust so arm yourself with this knowledge I paid for..
4.
 

michael_loomis

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Problem is this. Everyone THINKS they aced the field sobriety tests. I have passed them numerous times. I have only had to blow once. Blew a 0.05, and the cop was pist! Slammed the mouth piece down on the ground, and took off to another call. I felt fine. I drank 2 tall double vodka red bulls. Was I?
 

Offspring

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On topic, quick personal story. I caught a DUI many years ago and was screwed by system that knows the routine better than I did. Being honest here not the average "every guy in prison is innocent speech".

I was pulled over having had 2 cocktails in 4 hours. I am a regular drinker so felt nothing of the 2 drinks.
I was pulled over for speeding and was given a standard road side test. I had 2 drunks riding in the car giving the CHP probable cause.
I willingly took the the test and passed 4 quick and simple parts of the road side test with no issue.
I was asked to take a Breathalyzer and agreed.

This is where it gets tricky and everyone can learn from this!

I blew twice, never seeing the results (MY MISTAKE!!)

CHP played good cop routine and said "You are right on the limit and you seem fine so we would like to use a better Breathalyzer at the station so you can be cleared and go home." I also agree. They offer to tow my car at no expense to me and are willing to wait with me until a flat bed arrived so I could see that my car was safely taken away (Fancy car at the time). We waited for a total of 2 hours before we got to the station and I blew on the machine and Pow! What do ya know I blow right above the legal limit. Booked and shoved in a cell.

My lawyer heard this story and was already worried. He explained to me that this is a typical move by the CHP. I blew below the limit and was not legally impaired but didn't know to see the results. I trusted the cops. Mistake #1. If I had blown above the legal limit they would never risk having me blow a third time on a different machine to show inaccuracy.

The friendly gesture of letting me see my car safely removed gave me 2 more hours for the booze that was in my system to actually show higher on the machine in the station securing their bust.

My lawyer wasn't very surprised when my road side test results did not exactly match up with what actually took place.

The 3 page sheet which the officers describe the test involved several tests I did not take and every test including those I took and passed without issue basically described a fall down drunk and I failed every test. Not just failed but basically I was Charlie Manson by the time the description was finished.

My lawyer and I did all the research on traffic cams and security cams that could be done to catch this on video which would throw the whole case out of court due to the CHPs blatant lies. No such luck. The officers also knew that I wasn't drunk and may have planned to push through the bust because the test was done on the side of their car out of view of their car cam.

My point. Read this and learn something now before it is to late and you (trying to be a good citizen) is taken advantage of.

1. Obviously don't drink and drive.

2. If pulled over drive to a well lit parking lot or near any likely security cam area. Ask to be in front of the cruiser for the test so as to be captured on their cam.

3. If their are any likely witnesses near ask them to stay and get a contact number.

4. See the Breathalyzer numbers every time they make you blow. IT IS YOUR RIGHT! so don't be afraid to ask.

5. Any "friendly gesture" to delay a Breathalyzer test is ABSOLUTELY NOT friendly. You are responsible for being under the legal limit while in the vehicle. A seemingly slim amount of drinks can show up several hours later and an "above the limit citation". A couple of glasses of wine during dinner can do it!

Disclaimer: I am not suggesting that all CHP or cops are dirt bags or crooked. I am friends with several and they are good people. I am saying that their are cops that are crooked and that will manipulate a system they understand and you don't to make a bust so arm yourself with this knowledge I paid for..
4.
So was part of your defense that you had just downed the alcohol just before you were stopped? What was the final BA level if you don't mind saying?

Back to the ruling. This is just a ruling on how the breath testing equipment works, and possible variables in how the breath sample is converted to a BA number from deep lung breath. It has nothing to do with the .08 limit. That is still the presumptive level, nothing has changed. All this will be is a jury instruction and a defense tactic. Everyone is offered the opportunity to take a blood test after they take a breath test. That can be a two edged sword though and most turn it down.
 
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bajafox

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I guess I was lucky, I got the one good CHP officer in all of San Diego. He wasn't strict, I was very honest and told him each drink I could remember having, including the shots. I think he appreciated my honesty and returned the favor by being polite and honest.
 

BGRANT

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About 20 years ago my buddy failed a field test when he never even drank. He was driving like an idiot and wasn't very cordinated.
 
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