A valid chemical test result significantly increases the chances of a DUI conviction. However, the result is inadmissible, unless the gadget met certain legal and technical requirements, and it produced an accurate result. Some common legal, scientific, and technical flaws are outlined below.
The Breathalyzer, or rather the Drunk-O-Meter, its predecessor device, and the television were invented at about the same time. How many times has your TV not worked because the remote needed batteries, a wire was crossed, or you hit the wrong button? Similarly, the flaws discussed below may seem trivial. But they could greatly impact the device’s overall functionality, as well as the reliability of the results.
The burden of proof in a criminal case is beyond a reasonable doubt. That’s a nebulous standard that’s only one step higher than any possible doubt. Usually, if a Marietta criminal defense lawyer undermines the evidence enough to make jurors think twice, that’s a reasonable doubt. Mostly reliable results are, as a matter of law, unreliable.
No Probable Cause
We’ll start with a legal issue. Georgia, like all other states, has an implied consent law. By signing their drivers’ licenses, motorists agree to provide chemical breath or blood samples, if the officer has probable cause to demand such action.
Implied consent law violations trigger the administrative rivers’ license suspension process. Courts have also used the implied consent law to carve out an exception to the Fifth Amendment. A motorist’s refusal to provide a chemical sample is admissible in court.
Usually, substandard performance on the field sobriety tests establishes probable cause. The officer’s subjective opinion that the defendant “failed” the tests is sufficient.
However, some defendants refuse to perform these tests. Other times, officers don’t administer them. Occasionally, like Eddie, the officer said the defendant’s performance was “flawless.” Probable cause is hard to prove in these cases. No probable cause means an inadmissible Breathalyzer result.
So, when Homer’s DUI went to court, if he’d hired a Marietta criminal defense lawyer instead of representing himself, the judge might have excluded the Breathalyzer result.
A 2023 TV set is much more advanced than a 1923 TV set. Likewise, a modern Breathalyzer is light years ahead of a Drunk-O-Meter. More advanced gadgets require more intense maintenance. A skateboard is a lot easier to maintain than a Star Destroyer.
Typically, unless the maintenance records match the manufacturer’s specifications, the device is unreliable as a matter of law. Frequently, police departments calibrate Breathalyzers on an as-needed basis.
Lisa’s car could probably go four or five thousand miles between oil changes. But the manufacturer recommends oil changes every three thousand miles. In a court of law, the manufacturer’s standard is the only thing that counts.
Improper Chemical Solution
The same analysis applies to chemical solutions that process breath samples. If Lisa adds eleven ounces of chlorine to her pool instead of ten, the results probably won’t look like this. However, if Officer Lisa adds the wrong chemical solution or waits too long to add it, you guessed it, the Breathalyzer results are inadmissible in court.
Breathalyzer calibration isn’t cheap, and neither are the chemicals that fuel it. To save money, many police departments buy low-grade chemicals or use chemical equivalents, even homemade chemical equivalents.
According to popular myth, if you’ve been drinking, suck on Lincoln. That myth is partially true. Copper reacts with ethanol and skews breath test results. However, although pennies are copper-colored, they’re made almost entirely of zinc.
Excess ethanol particles in the mouth, a much more common mouth alcohol issue, also skew the results. Burping and belching pushes ethanol particles from the stomach into the mouth. So, the Breathalyzer measures stomach alcohol level instead of breath alcohol level.
This flaw is related to the calibration issue. Outside temperatures change rapidly in Georgia, especially at certain times of the year. A Breathayzer calibrated for a 90-degree temperature is improperly calibrated for a 70-degree temperature. That’s especially true of the small, portable Breathalyzers officers use in the field.
The defendant’s body temperature matters as well. A low-grade fever could slightly increase a Breathalyzer result. Temperature variations are especially important in borderline BAC cases, like a .07 or .08.
If officers ask, “when was your last drink,” defendants usually say, “three or four hours ago,” hoping to convince officers that they’re sober. This strategy almost never works, but people keep trying it.
The strategy is also counterproductive. Recent alcohol consumption creates a variance between breath alcohol level and blood alcohol level. Booze travels from the stomach to the liver to the blood. Therefore, recent alcohol is in the liver and not the blood. As mentioned, blood alcohol content level is the legal standard in Georgia.
Like all other computerized gadgets, Breathalyzers have hardware and software. Both are essential. Software mistakes cause inaccurate results. As for hardware, a Breathalyzer isn’t an iPhone. Officers cannot connect a Breathalyzer to the internet and download recent hardware patches or other system updates.
Since Breathalyzers aren’t publicly available, manufacturers don’t have to disclose software and hardware operating systems. Additionally, a Marietta criminal defense lawyer usually cannot subpoena a Breathalyzer in order for a third party, like a chemist, to inspect it.
Finding programming errors is incredibly difficult, but this issue is becoming more widely known among jurors, and it affects the way the view Breathalyzer results. That’s especially true since many people nowadays distrust police officers.
A breath test doesn’t mean an automatic conviction. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. The sooner you reach out to us, the sooner we start working for you.