The Validity Of Breath Testing Rests Upon A Vast Array Of Assumptions That
Can Be Attacked By An Experienced DUI Attorney In A Wide Variety Of Cases.
COMMON
ASSUMPTIONS:
1. THE MACHINE IS IN PROPER WORKING ORDER AND HAS BEEN PROPERLY
CALIBRATED. Even if everything is in proper working condition, there
can be an acceptable variation of +/- .02. If your result is a .10% that's a 20%
error factor. How would you feel if the altimeter of an airplane was 20%
off?
2. THE SAMPLE WAS PROPERLY OBTAINED. The law requires that
you be under continuous observation for 15 minutes prior to your breath test to
prevent "MOUTH ALCOHOL" If the operator of the breath machine did not have you
under continuous observation for 15 minutes prior to testing, your test may be
invalid. Even if you were observed, you may have medical conditions that may have made you an
improper candidate for breath testing. These conditions include common ailments
such as heartburn and gum disease.
3. THE SAMPLE WAS OBTAINED AFTER YOU ABSORBED ALL THE
ALCOHOL. Breath testing assumes that the subject is post absorptive.
This is important because the machine is calibrated to multiply the breath
result by 2100 to calculate your blood alcohol level. If you were still
absorbing alcohol, this would tend to significantly over report your true blood
levels.
4. THE TEMPERATURE OF YOUR BREATH WAS 34 DEGREES CENTIGRADE. This is an assumption that is made in every breath test in Orange County. State
of the art breath testing equipment actually measures the temperature of your
breath and will subtract any false high result due to elevated breath
temperature. Studies done with this equipment establishes that the real average
breath temperature for arrestees in DUI cases is closer to 35.5 with readings
actually over 37. This alone would cause a false high of between 10-20 %
TEN COMMON CHALLENGES TO BREATH TESTS:
The Machine Was Not Properly Operated
The Machine Was Not Properly Maintained
The Machine Was Not Properly Calibrated
The Machine Was Affected By Radio Frequency Interference (Police Radio etc.)
The Machine Has An "Acceptable" Range Of +/- .02%
Your Body Temperature Was Greater Than 98.6
You Were Tested Within 2 Hours From Your Last Drink
You Have Medical Or Dental Problems That Make You An Improper Candidate For
Breath Testing
The Officer Did Not Have You Under Continuous Observation For 15 Minutes
Prior To Giving You The Breath Test
Your Symptoms And Drinking Pattern Are Inconsistent With The Test Result
