Guest Post: Ways to Challenge Breathalyzer Test

I received an email via my contact page from John Adam, who wanted to wanted to give some perspective on how to challenge the Breathalyzer test. Interesting stuff - Tom

The use of breath to determine the blood alcohol level of a person is the most popular scientific method in DUI cases. There are many cases, when the wrong Breathalyzer tests cause the person, under suspicion of driving while drinking, face DUI charges. Breathalyzer results are inaccurate because of certain problems with calibrations or if there is an untrained police officer using the device.

The prosecuting party has to prove in the court that the defendant’s BAC was at or above the legal limit. In a few states, it is .10% while in others it is .08%. When the person is wrongfully charged on the basis of defective Breathalyzer tests, the defendant needs a
DUI attorney to challenge the Breathalyzer test in court.

The Burden of Proof in Challenging the Results:
Under the wrongful DUI charges, the defendant must prove that these charges are invalid for the conviction. This is possible when the attorney convinces the court that there is a lack of strength in evidence or it is insufficient to convict the accused. The defense team may focus on the witness statement and evidence without having the burden of proof. When the defense refutes the proof and demonstrates that the prosecution has not strengthened in the case, this may help in dismissing the
charges.

Use of Breathalyzer:
There are many cases when the Breathalyzer is not used properly. The police officer uses the device inaccurately given improper maintenance, training or calibration, which gives the inaccurate results. When the prosecuting party has Breathalyzer results as the only evidence, by only refuting this proof it becomes easy as well as effective to defend the person from the conviction. However, in this case, the defense team needs the help of an expert in these devices or understands well the proper calibration to give accurate results.

Training of the Police Officer:
In many cases, the police officer who pulls over the driver on suspicion of being under the influence of drug or alcohol, may not be properly trained to conduct a Breathalyzer test or use the device. The device cannot provide the results if the officer does not use it accurately. There are certain rules for this such as observing the driver for twenty minutes to determine whether the results are accurate or not. Moreover, the office is supposed to check the intestinal health of the accused or alcohol in the mouth.

Calibration:
Breathalyzers have settings as well as calibrations that need regular maintenance and understanding. In case the officer in charge is unaware of how to set the device and keeps it maintained, the device can produce the wrong results.

Few devices need to be repaired and parts replaced. In case of lack of knowledge about taking care of the device, there will be inaccurate results leading to wrong DUI charges. Not only one, but all or most of the arrest will be affected.

Challenging the Results Varies According to the Case:
In addition to the above-mentioned ways, there are other ways to challenge the Breathalyzer tests. For instance, the accused may have a special condition that could lead to the retention of the alcohol in his or her system that brings wrong results. This is another effective to challenge the results and refute the charges completely.

Other factors involved, the environmental temperature and pressure in the atmosphere, and the chemical composition of the person taking the test. This refers to the emotional stress and physical activity, hyperventilating, heavy breathing due to anxiousness.

Given these several factors, the results are inaccurately measured. This is the reason few of the DUI cases involve expert witness who gives the testimony about the inaccuracy of the device with incorrect results. The DUI attorney must present the valid argument based upon these facts and evidence.

Final Word:
The defendant needs the support of the lawyer to challenge the Breathalyzer tests, as the attorney is skilled in dealing with such cases and will guide according to the given circumstances.

Protip: Check and Double Check

Today was an interesting day.

Went down to the courthouse to pay my fine. My deadline is coming up and I wanted to get it out of the way. Most of my time was spent arguing how to do it - should I drive there and park or should I take the train and not worry about parking? How long is this going to take? Should I go early or wait till after the lunch rush?

Most of that wasn't the issue (I walked right up to one of the clerks)

However - I came to find that not all of my paperwork had been filed. The clerk informed me that neither my DMV certificate nor my MADD certificate had been filed. I was shocked! I had taken care of these things more than 9 months ago!

I called my lawyer's office - my lawyer was no longer part of the firm. I explained to them what was going on and within ten minutes they had everything sorted out and a person to go down to the courthouse tomorrow or Monday to file everything.

A few lessons learned:

  1. Don't wait - The longer you wait, the more chances that something will change, something will go wrong, some mistake will be made. The sooner you take care of stuff, the sooner you're not worrying about it, and the more time you have to correct things if they go wrong.

  2. Check and Double Check - Last Spring I biked over to my lawyer's office (I was on full suspension) and turned in my documents. I assumed that he would turn them in to the court in the next few days or so. No real worry. But he hadn't. Either he was waiting for me to drop off the check to pay my fine, or left the firm shortly thereafter (No idea when he left). But my documents had not been filed. It was a mistake to assume that they were.

This is a tough process, I know. And it's no fun, and it's a lot of hassle. But being early, and thorough will save you a lot of headache. If I had gone in at the last moment, I could've had a longer probation, more fines, or worse.

Get it done early, and double check.

Paying the Price: The Fine (and alternatives to paying the fine)

The minimum fine for a DUI in Los Angeles County is $390. Most likely if you plead out, and/or had no priors, this should be about what you were given in your sentencing.

So, naturally, when you get your documentation you receive a “Compliance of Fine Payment/Cashier Slip” detailing your fine and the various “court costs” associated with your case.

With court costs your $390 fine comes out to be around $2000.

Huh? How’d that happen?

When you think “court costs” you think that you’re being charged for the administrative system, much like the costs associated with getting your driver’s license or getting a permit to do construction. This is not the case.

Instead, the court costs are little fees that they tack on to every conviction to use it as a source of income. Some of this does go to cover Judge’s salaries and the infrastructure of the building, but most of it is used to make up budget shortfalls caused by the public electing to lower taxes (or voting in officials who lower taxes). Lower taxes, higher fines.

The biggest part of the fine is the “Penalty Assessment”. This is assessed on
all criminal fines, not just DUI fines. Get a speeding ticket - it’ll be on there.

Originally in the 1950s the rate of the Penalty Assessment was $1 for ever $20 of your fine. Mine was a little over $30 for every $10 of my penalty.

Additionally, there’s a “Penalty Assessment DNA” which funds DNA identification programs supposedly. Mine was around 1/3rd of my original penalty.

Believe me, how these rates are determined and what the money goes to is incredibly hard to research. For any rate I find online I do the math on my penalties and they don’t quite add up. Some are more, some are less. There’s not much you can do about this, but it would be nice to have some transparency during this part of the process. Alas, that’s not what they want.

The math of the form is difficult to add up - some numbers are listed, giving you a balance for them, but are supposedly included in the base fine - but that doesn’t mean they’re additional listings. If the fine that you agreed to from the court was $390, they’ll list the base fine as $320. Then you have items RESTDUI ($20 - no idea why it’s separate or what it’s for) and LABSVCS ($50 - believe this to be them charging you to use the station breathalyzer) claiming to be part of the base fine, but listed separately. It’s all designed to confuse you.

Trying to research this piece, I hit a lot of dead ends, and can’t find answers. I was charged $75 for PBHEALTH which states that it has a maximum of $100. What determines why mine was $75?

I asked my lawyer about it. He told me not to worry too much about it. He’d looked it over and it was in line with what the others looked like.

I guess you can worry too much about this sort of thing. Fighting any part of it would be an extreme uphill battle.

Alternate Options (and why they’re no good)

On your sentencing form you’ll see a part that says that you will pay a fine or “in default thereof serve ___ additional days in County jail, consecutive,
or perform ___ days of community labor”. Some people’s brain starts turning when they see this - with jails and prisons overcrowding you can often serve at 3:1 ratios (meaning you get credit for 3 days when you serve only 1), and sometimes even get 4:1.

Might it be worth it to give up a weekend or two to save a couple of grand? It seems kind of tempting.

Unfortunately, like most of the bright ideas you come up with to get out of things, it doesn’t work like that.

Serving jail time or doing community labor (which has it’s own difficulties, overcrowding means that you can’t serve that day instead of getting more credit for less) only counts against the base penalty of your fine. The court costs will still be there. In that case, a day in jail only counts for about $35.

Not worth it.

Additionally, some people try to get house arrest to either pay the fine, or count as their probation (more on that later), which isn’t ideal either - then you have to serve out the
full time, no ratios. So 15 days means 15 days (plus the fees for the monitoring bracelet add on, so it’s just a losing proposition).

How to Pay

For once, something in this whole process is simple. If you head down to the clerk’s office, you can pay with cash or a money order, which I expected, but, they’ll even take a personal check and some will even take a credit card.

If you have a check or money order, you can either give it to your lawyer or mail it to the county clerk’s office. If you want to pay cash or with a credit card, you have to go down there. Some places allow you to do this online, but, sadly, Los Angeles is not yet one of them. As with any civil service, expect to wait in line for a while to do a three minute procedure. Be sure to have your documents with you, as they need a lot of information to process your payment.

Payment can be done in a lump sum, or installments if you don’t have the resources. As long as the court is getting something, they’re willing to work with you.

It stings. It certainly does. But, once you’ve paid, you’re closer to getting this behind you.

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