The Common Myths Associated With Usage Of The Breathalyzer

Interviewer: What about the myths of the breathalyzers? Have you ever heard of any of those kinds of things before?

Matthew Nebeker: The myths of the breathalyzer?  Well, yes, the penny in the mouth, I’ve certainly heard of that but that’s why they have that deprivation period that I spoke with in the beginning. The officer is supposed to check in your mouth and make sure nothing like that is there, so I suppose if you did put a penny in your mouth and the officer didn’t see it when he checked your mouth and you could prove that you have the penny in your mouth when you took the test, then there could be an argument that the deprivation period wasn’t proper and technically, that penny could have affected the outcome of the test.  Yes, but I don’t know any scientific studies saying that but it’s just the argument that the officer didn’t check his mouth.

If a Subject Has a Dime or a Penny in their Mouth it Proves that the Officer Did not Check their Mouth Prior to Administering the Tests

Yes.  So, same concept, yes, it would just show that the officer didn’t properly check his mouth; what else could have been there or is it effective but then, I will have to prove that and convince the judge that my client had a penny or a diamond in his mouth during the test. Now, if a video showed after the client blew into the machine and they were walking out of the Intoxilyzer room and the guy took the penny out of his mouth and kind of, on camera said, well then that would be great but yes.  I haven’t had that one yet in my cases.

An Individual Should Not Give Up Hope as Breath Tests Can be Challenged in Court

Interviewer: So, I guess the whole thing is that if someone has never been in a situation before, they’ve taken the breathalyzer and scared about their case being hopeless and that’s not something they should be awfully concerned about because there are some certain facts in there, it’ll be best to consult you because there may be something in there that could actually help their case, would that be accurate?

Matthew Nebeker: Yes, absolutely.  That’s why, on a breath test case, they should not give up hope.  There are so many variables, so many factors that can be argued on those cases that it’s certainly worth having the attorney to take a look at it and given the client an opinion.

Aggravating Factors For an Individual Involved in a DUI Case and Breath Tests

Interviewer: Are there any factors that do make it worst for a client?

Matthew Nebeker: Well, on those breath test cases, I totaled the error rate at about 47 per cent, so if the client is really high, has a really high breath test result like a 0.28, 0.24, you know, you cut that in half, you’re still going to be over the limit.  So, in those cases, we would have to probably take a different approach. Sometimes, people that have that high breath test, they function pretty well because they’ve been drinking a while and they’re used to the alcohol and they can do well.  And so we take a look at the video and the field sobriety tests and because they can function well on high level of alcohol, sometimes they don’t do that poorly on the field sobriety tests.

Challenging the Accuracy of the Breath Testing Machine is a Viable DUI Defense

They might hit one or two clues on each one which is still enough for the officer to arrest them but if they look good on the video and they didn’t do too poorly on the field sobriety tests, we can then argue – and it’s called the disconnect case – “Well, how could this guy have the 0.28 and only missed four points on the field sobriety tests?  There’s something wrong with the machine.  He’s driving down the road, he’s not weaving or he wasn’t involved in an accident, he just made a common error and forgot to signal and that’s why he was stopped.  He missed quite a few points on the field sobriety tests but look at this number; how can that be?”,  We make the argument that there must have been something wrong with the machine. That’s kind of how you handle those cases with the high BAC where you can use the human variables and the machine variables to bring the score down, to bring the test number down.  So, even the high blood test cases, it’s still worth taking a look at.

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