After an Arrest for DUI, Which Chemical Test Are You Likely to Undergo?

Interviewer: In the areas in which you practice, do the police favor either a blood, breath or urine test? What is typically done?

A Breath Test Is Often Administered

Attorney Nebeker: The breath test is the most frequently test administered. However, before they administer the breath test, they’re supposed to look into your mouth, make sure there’s nothing in there, remain with you for 15 minutes before giving the test, and then they’re supposed to give you the test.

Frequently, There Are Issues with the Functioning of the Breathalyzer Machine and the Administration of the Test

The more cases I handle, the more times I see that those machines are not that accurate and they frequently have operating issues. There is usually some room for defense based on the inaccuracies of the machine.

Interviewer: What kinds of problems happen with the machines?

Attorney Nebeker: We start with the officer that is supposed to be looking in the client’s mouth. Sometimes they just get in a big hurry, they forget, or before they give them the test, the leave the room. They’re not with the client to make sure they don’t burp, or regurgitate, or put in anything in their mouth.

Those kinds of issues are a little bit tougher because if the video is not there, then we have a harder time proving it, but we always obtain everything we can. As far as with the machine itself, sometimes they don’t have the calibration records to make sure it was properly calibrated before the test was given.

Then you can pull the maintenance records to see if it’s been having any problems. I had one here a while ago where it was having some radio frequency interference. Because of that, they had another trooper bring his machine. We can pull those logs and see if the machine has been having problems, see if there has been any other type of issues with radio frequency.

Law Enforcement Officers Are Required to Be Trained to Operate the Breathalyzer Machines

Interviewer: Actually, what about the officer that operates the machine? Do they have to be trained or certified?

Attorney Nebeker: Yes, they do and I always obtain their training records.  I have most of the officer’s training and I keep a binder of to make sure they are current. If I encounter a new officer, I’ll send for his training records to see if he was certified on the machine, when that certification expires, and keep track of all that. Yes, that can be a reason to have the breath test thrown out.

Common Issues with the Breathalyzer Machine

Interviewer: How about the machine itself. How have you seen it malfunction? Can there be problems reading the results sometimes, even if the person trying to blow properly?

Breath Test Machine Results May Be Non-Readable Due to Insufficient and Invalid Air Samples, Error Readings or Operator Error

Attorney Nebeker: There can be an invalid sample, meaning that the person doesn’t blow enough air into the machine, so it will give a default. There really are all kinds of different readings that machine will give, such as insufficient sample, invalid sample, and error readings.

I had one the other day where it said “Insufficient sample.” This is the highest level. The number given is the highest level achieved.” Instead of just starting over, waiting another 15 minutes, resetting the machine, the officers just say, “Well, that’s it. We give up,” and they think that’s good enough.

When you argue that, “The machine is telling you there’s something wrong here, there’s a problem here,” it makes for a good argument to have the case thrown out, and a good argument to present to a jury.

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