“Do you agree to provide a chemical sample” is often the biggest DUI arrest question. The conviction rate in test cases is much higher than the conviction rate in non-test cases. In fact, many defendants assume that if they provide a breath or blood sample, they are automatically guilty. Fortunately, that’s not true, especially in borderline cases.
Although chemical test cases are often not open and shut, only the most experienced Marietta criminal defense lawyers should handle these matters. Usually, a lawyer must have a combination of scientific and legal expertise. That combination is very hard to find. However, if a lawyer can successfully exploit the scientific or legal problems involved, a positive result is often just around the corner. This result could be a complete dismissal of charges, a plea to a lesser-included offense, or a not guilty verdict at trial.
Probable Cause Issues
According to Georgia’s implied consent law, police officers must have probable cause to demand chemical samples.
Usually, DUI arrests begin with traffic violations. Sometimes, the traffic infraction could constitute probable cause. That’s especially true if the defendant was driving erratically. But most people get pulled over for speeding or an infraction completely unrelated to impairment.
When officers reach the “license and registration please” phase, they are trained to look for physical symptoms of intoxication, such as:
- Bloodshot eyes,
- Slurred speech,
- Slow reflexes,
- Unsteady balance, and
- Odor of alcohol.
If most or all of those symptoms are present, the officer might have probable cause to demand a sample at that point.
However, in almost all cases, the Field Sobriety Tests serve as probable cause. During spring and summer months, this evidence is normally available and reliable. Fall and winter are different.
Environmental conditions affect tests like the walk-and-turn and one-leg stand. It’s difficult to walk a straight line or stand on one foot when it’s freezing cold or when the wind is blowing hard. Furthermore, during the winter holidays, supervisors often pressure police officers to make more DUI arrests. As a result, officers sometimes take shortcuts, especially during the early phases of an arrest.
Additionally, during winter months, defendants are more likely to refuse at least some of the Field Sobriety Tests. Frequently, the defendant performs the DUI eye test and refuses to perform additional tests. The Horizontal Gaze Nystagmus test is arguably the weakest of all the field tests. If prosecutors only have these test results to establish probable cause, they could be in trouble.
Breath Test Problems
The modern Breathalyzer is an impressive gadget. To play up the techno-wizardry aspect, police Breathalyzer technicians often dazzle jurors with tales of fuel cells and electrochemical reactions. However, they do not mention the fact that the modern Breathalyzer is just a new and improved version of the 1920s Drunk-O-Meter. Once jurors know the Breathalyzers’ origin, they are more willing to consider some common Breathalyzer flaws, such as:
- Temperature Changes: Another thing about the fall and winter in Georgia is that the weather often changes quickly and drastically. My kids often go from shorts to parkas to shorts in the span of a week or ten days. Sensitive devices like Breathalyzers do not adjust well to such changes. On a related note, a two or three-degree fever can also inflate the Breathalyzer result.
- Mouth Alcohol: Technically, officers are supposed to watch defendants for at least fifteen minutes to ensure they do not belch, burp, or vomit. If anything like this happens, alcohol particles from the stomach rush into the mouth and skew the test results. But most officers don’t take this observation period seriously.
- Unabsorbed Alcohol: Normally, alcohol doesn’t go directly to the blood. First, it takes a detour to the liver. As a result, any alcohol the defendant has consumed in the past hour has usually not absorbed into the blood. Since the standard in Georgia is Blood Alcohol Content, a Breathalyzer result, which measures breath alcohol levels, could be misleading.
As mentioned, jurors especially take these flaws into consideration in .08 and other borderline BAC cases. Furthermore, jurors are less trusting of police officers and police officer technicians than they were ten years ago. So, these witnesses no longer get the benefit of the doubt.
Blood Test Issues
Unless the defendant was too seriously hurt in an accident to blow into a Breathalyzer or the stop occurred on a no-refusal weekend, officers normally don’t administer blood tests. When these tests do come up, there are usually some procedural and scientific issues.
Procedurally, officers need search warrants to extract blood samples. As mentioned, probable cause is often an issue in these cases. Search warrants must be based on probable cause. If this foundation is shaky, the warrant is invalid, even if a judge signed it.
Furthermore, blood tests often have chain of custody issues. Typically, samples travel from defendants’ bodies to laboratories to police evidence lockers to courtrooms. A gap in the chain of custody casts doubt on the specimen’s authenticity. In criminal cart, a partial doubt could be enough to get a not guilty verdict.
Scientifically, blood test results are normally accurate. However, attorneys often order re-tests from independent labs. These doctors often obtain results which are markedly different from the ones police technicians claim they obtained.
DUI chemical test results are not unassailable in court. For a free consultation with an experienced criminal law attorney in Marietta, contact The Phillips Law Firm, LLC. Convenient payment plans are available.