Notable DUI Case Studies Involving Usage of Breath Tests

Interviewer: Are there any particular cases that you can remember in regards to breathalyzer, any recent cases maybe that you can give as an example of how it may have worked out for an individual?

Matthew Nebeker: Yes.  Well, what we’ve had recently, some recent breathalyzer cases, are dealing with this idea of an insufficient sample. And what’s going on is the machine and the manufacturer of the machine, the Intoxilyzer machine, says that, “There has to be this much air blown into the machine before it can calculate a number”. If the driver doesn’t blow that much air into the machine, the machine sends out a default of insufficient sample, and on that receipt that it prints out, like I mentioned that getting at the gas station, it’ll have a number on there and sometimes, that number will over limit and so, I had one the other day where like 0.18 and then, it’s said insufficient sample, highest level obtained.

Many Prosecutors Will Go Ahead with Using a Breath Test Even if the Machine Indicates an Insufficient Sample

So, we have a lot of prosecutors say, “Well, that’s a reliable number even though the machine says ‘Insufficient sample’, it still says 0.18, that’s over the limit and I’m going to prosecute based on that.” And then, you dig into the Highway Patrol’s own manual, it says that you’re not supposed to rely on an insufficient sample, you’re supposed to either give them another test, like the blood test or mark it as a refusal.  It doesn’t say rely on the highest number obtained. The prosecutors, even when you pull up the manual and you show them the manual, they’re still trying to say that that’s a good number.

The Utah Highway Patrol Has Conducted Research Studies on an “Insufficient Sample”

So, we’re litigating a couple of those cases right now where they’re still trying to prosecute and the Highway Patrol has gone and conducted some of their own studies concerning an insufficient sample and what it really means, so they’ve come up with some insufficient samples and then, on that same person went and drawn the blood and had the blood analyzed and the numbers came back close to the insufficient samples but those are not independent scientific tests and they’re still trying to rely on it. So, that’s what’s going on really with our breath test cases now, the big issue is the insufficient samples.

Certain Judges in Certain States Do Not Allow Test Results of the Intoxilyzer in Court

It should be noted here that the Intoxilyzer 8000, the one we have here in Utah, there’s been some recent case law in other states.  There are certain judges in the state of Ohio, for example, that won’t allow a breath test result in his court from the Intoxilyzer machine. They had a hearing and he doesn’t believe that the machine is reliable or accurate, and there’s similar litigation going on in Florida too where they’re attacking the reliability of that machine specifically and so, that’s the most recent notable stuff that I’ve come across on the Intoxilyzer machine that they use here in Utah.

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