DUI Breathalyzer Challenges Continue to Mount

Posted by Steven Eversole | Aug 17, 2013 | 0 Comments

Establishing reasonable doubt in any criminal case is going to mean attacking the strength of the evidence against you.


For those facing prosecution following a Birmingham DUI arrest, this could very well mean attacking the reliability of the breathalyzer test used to gauge your level of intoxication.

Breathalyzer tests, which purport to measure the amount of alcohol in your blood stream by examining samples of your exhaled breath, have come under a great deal of scrutiny across the country in recent years. It's been revealed that their mechanical accuracy may have long been overstated by both police and prosecutors. Yet, law enforcement agencies, including those in Alabama, continue to administer them, while prosecutors still cite them as a key piece of evidence in DUI cases.

Our Alabama DUI lawyers continue to carefully watch developments as they relate to ongoing challenges of these devices. Even those challenges outside our jurisdiction may have relevance. If legal arguments against the machines are successful in one place, it's possible they might well be successful in another.

One such challenge that we're watching closely is out of Arizona. There, the Arizona Supreme Court has granted DUI defendants the right to challenge breathalyzer results by introducing evidence to jurors showing how certain variables might impact the test.

For example, the defendants say that things like body temperature, outside temperature and adverse medical conditions, could potentially impact the test results, skewing them higher than they might be otherwise.

Prosecutors had attempted to argue that these issues are legally irrelevant. The high court disagreed.

It's a victory for the defense team, to be sure, but it's not an automatic win. Defense lawyers will have to show not only that those elements can affect the test, but howthey affected the test in their particular case.

Here, the defendant had been arrested in 2010 for driving while being “impaired to the slightest degree.” Just like in Alabama, Arizona has a legal alcohol limit of 0.08 percent for motorists. However, the law varies a bit when dealing with those under that threshold. Anything under 0.049 percent is deemed not drunk. But the law is less clear if someone's BAC measures between 0.05 percent and .079 percent. If other elements suggest the individual is intoxicated, he or she could be hit with the “impaired to the slightest degree” charge, even though he or she did not meet that 0.08 percent threshold.

What the defense team in this case intends to argue is that because the breathalyzer device is faulty, the test results could have been skewed enough for the results to suggest slight impairment, even if an individual was not impaired.

A scientist is set to testify that the concentration of red blood cells from person to person could affect blood-alcohol concentration measurements by up to 5 percent, higher or lower. This same individual is also prepared to testify that a variance in one's body temperature, even by a singular degree, could be enough to tip the scales of a breathalyzer test by as much as 8 percent.

If you have been arrested for DUI in Birmingham, call Eversole Law at (866) 831-5292.

Additional Resources:
Court says Ok to challenges to Breathalyzer tests, Aug. 9, 2013, By Howard Fischer, Capitol Media Services
More Blog Entries:
Violating Alabama Bail or Probation Terms Can Result in Serious Consequences, Aug. 15, 2013, Birmingham DUI Defense Lawyer Blog

About the Author

Steven Eversole

J.D., Samford University's Cumberland School of Law, Birmingham, Alabama B.A., University of Alabama, Tuscaloosa, Alabama


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