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You may select one of the following chapters and have it e-mailed to you at no charge:

Chapter 1: Basic Properties of Alcohol
Chapter 2: Alcohol Absorption, Distribution, Elimination, and Effects
Chapter 3: Legal Standards: Implied Consent
Chapter 4: Search and Seizure: Police Procedures
Chapter 5: Discovery and Investigation
Chapter 6: Retaining and Using Experts
Chapter 7: Field Sobriety Tests
Chapter 8: Attacking and Defending Field Sobriety Tests and Evaluations
Chapter 9: Blood Alcohol Concentration and Widmark Calculations
Chapter 10: Attacking and Defending Widmark Calculations

Chapter 11: Breath Tests
Chapter 12: Attacking and Defending Breath Tests
Chapter 13: Blood, Urine, and Saliva Tests
Chapter 14: Attacking and Defending Blood Tests
Chapter 15: Laboratory Operations
Chapter 16: Laboratory Analysis
Chapter 17: Attacking and Defending Urine and Saliva Tests
Chapter 18: Pretrial Suppression Motions
Chapter 19: Jury Selection
Chapter 20: Coordinating the Attack in Trial

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Here are the first 5 pages of a 25-page chapter:

Chapter 12

Attacking and Defending Breath Tests

I.    General Points

§12:01   Police Prefer Breath Tests

§12:02   Drivers Prefer Breath Tests

II.  Attacking Breath Tests

A.   General Points

§12:10   Three Categories of Attacks

§12:11   First Line Defenses

§12:12   Second Line Defenses

§12:13   Third Line Defenses

§12:14   The Common Theme

§12:15   Checklist for Attacking Breath Tests

B.   First Line Defenses

1.   Calibration of the Machine

§12:20   Review Calibration Records

§12:21   Frequency of Certification Varies

§12:22   Distinguish Between Calibrations and Calibration Checks

§12:23   Sample Calibration Check Record

§12:24   Suppressing Tests for Lack of Calibration Check

§12:25   Challenging Perfect Records

§12:26   Cross-Examining on Calibration Checks

§12:27   Calibration by Dry Gas Alcohol

§12:28   Calibration of the Draeger Alcotest 7410^®

2.   Administration of the Test

§12:30   Review Test Administration Procedure

§12:31   Operator Must Be Qualified

§12:32   Operator Qualified on a Different Machine

§12:33   Effect of Unqualified Operator

§12:34   Testing Procedures

§12:35   Required Observation Period

§12:36   May Have More Than One Observer

§12:37   The Continuity Requirement for the Observation

§12:38   Failure to Comply With Observation Period

3.   Test Assumptions and Averages

§12:40   The 2100 to 1 Partition Ratio

§12:41   Traditional Attack on the Partition Ratio

§12:42   Establishment of Breath Alcohol Level as a New Offense

§12:43   Use the Ratio Attack to Limit Use of the Test

§12:44   Use the Ratio Attack When Prosecution Expert Contradicts Defendant

§12:45   Cross-Examining on Partition Ratio

C.   Second Line Defenses

§12:50   Margin of Error

§12:51   Not Specific for Alcohol

§12:52   Falsely High Readings During the Absorptive State

D.   Third Line Defenses

§12:60   General Points

§12:61   Radio Frequency Interference

§12:62   Dentures and Dental Work

§12:63   Human Factors

III  Defending Breath Tests

§12:70   Do Not Discuss Partition Ratios

§12:71   Know the Testing Regulations

§12:72   Establish That the Machine Was Working

§12:73   Use Impressive Names for the Machine

§12:74   Establish the Operator’s Credentials

§12:75   When the Test Has Problems

I.    General Points

§12:01    Police Prefer Breath Tests

Breath tests are the most common chemical tests seen in drunk driving cases. Police officers often subtly, or not so subtly, encourage arrestees to take breath tests. Officers prefer breath tests because:

Generally it takes less time for an officer to complete a breath test than to arrange for a blood test.

Most police officers have been qualified to conduct breath tests themselves.

With a blood draw police officers have to arrange for a phlebotomist to meet them at the jail, or take the suspect to a hospital.

Some officers are also concerned that the delay in conducting a blood test may allow the alcohol level to diminish, thus reducing the officer’s chances of obtaining a conviction. The United States Supreme Court some time ago observed that law enforcement is a competitive enterprise. [Johnson v. United States, 333 U.S. 10, 14, 92 L.Ed. 436, 68 S.Ct. 367 (1948) (acknowledging what defense lawyers have known for a long time—police officers want to win too).]

§12:02    Drivers Prefer Breath Tests

From the drunk driver’s perspective, a breath test seems like a pretty good idea. A breath test does not have the invasive qualities that accompany blood testing. When given a real choice by the police between a blood or breath test, the majority of persons arrested for driving under the influence of alcohol choose breath tests.

Also, police officers often tell persons arrested for drunk driving that they will let them go if the accused takes a breath test and the results register under the legal limit. However, the officers do not necessarily tell arrestees that they will not be charged with driving under the influence of alcohol, only that they will be released if the test comes under the per se limit.

 

PRACTICE TIP

Advise clients to take a blood test.

With a blood test the arresting officer does not have immediate results. In contrast, the officer knows the breath test results when he writes his report. When, for example, an officer sees a .22% breath test, it is only human nature to skew the report so that it is reflective of the breath test result. Cognitive dissonance makes it difficult for the officer to write down that the defendant’s speech was normal when the breath test tells the officer that it should have been otherwise. It never occurs to the officer that the breath test results could be wildly erroneous. [See State v. Ross, 938 P.2d 797 (Oregon App. 1997) (court prohibited officers from giving their opinion that the breath test results were consistent with the observed symptoms because the per se statute only permits proof by chemical analysis).]

[§§12:03-12:09 Reserved]

II.  Attacking Breath Tests

A. General Points

§12:10    Three Categories of Attacks

There are many ways to challenge breath tests. The inside secret is that the various approaches are not of equivalent strength. Some methods are much more readily understood and accepted by jurors than others. The key to attacking breath tests is to use a system that leads to the defense that will be the most successful.

The system to attack breath tests can be broken into three categories:

• First Line Defenses (defenses that can defeat a breath test on their own). [See §§12:20-12:45.]

• Second Line Defenses (defenses that are more successful if they have additional support). [See §§12:50-12:52.]

• Third Line Defenses (defenses that are rarely successful). [See §§12:60-12:63.]

The fact that first category has had more success than the others does not mean that the attacks in that category are of greater scientific value than the attacks in the other categories. It simply means that traditionally jurors have been more comfortable acquitting defendants in those defenses.

 

PRACTICE TIP

Sometimes you will get lucky in trial, but you will never get lucky in trial if you do not announce ready for trial. From the defense perspective, properly prepared drunk driving cases almost always get better in trial than they appeared on paper. At first this will seem to you to be an interesting and happy happenstance. Upon reflection, what you may discover is that the cases get better in trial not because of some good fortune, but rather because without a trial the government’s evidence is never tested. The police report looks unyielding until the cross-examination of the officer. The laboratory records appear bulletproof until they undergo the same scrutiny.

§12:11    First Line Defenses

First line defenses are defenses that can defeat breath tests on their own.

Not only can first line defenses stand alone, but they have the added benefit that jurors easily understand them. This makes them more plausible, and it is where a defense attorney should first look in developing an attack on a breath test.

An example of a first line defense is when the calibration records show that the breath machine was not working accurately at the time the defendant took the breath test.

[For more on first line defenses, see §§12:20-12:45.]

§12:12    Second Line Defenses

Second line defenses could stand alone, but they are generally much more successful if they have additional support. They are relatively easy to explain to jurors and the defense is not only reasonable, but seems reasonable.

An example of a second line defense is the absorptive phase defense. Breath alcohol levels read significantly higher than blood alcohol levels during the time when alcohol is being absorbed into the body. However, while this observation is unquestionably true, additional evidence pointing to the defendant’s innocence is usually required for jurors to feel comfortable in acquitting a client presenting this defense.

[For more on second line defenses, see §§12:50-12:52.]

§12:13    Third Line Defenses

Third line defenses are legitimate recognized approaches, but they seldom work. Using any of these methods in a trial is a little like selecting the field entry in a horse race: you are not likely to win, but you have something to talk about.

Examples or third line defenses are:

• Instability in the differential voltage measurement of a breath machine.

• Radio frequency interference with the breath machine.

• Alcohol trapped in dentures can falsely elevate the test results.

• A person with blood with a high hematocrit elevates breath alcohol results.

• Body temperature and breathing patterns skewed the test.

[For more on third line defenses, see §§12:60-12:63.]

§12:14    The Common Theme

Irrespective of what which category of defense is employed or which type of breath machine was involved, there is a common theme that should be weaved into all attacks on breath testing. That common theme is:

Because breath testing involves the analysis of microscopic amounts of alcohol it is critical that everything involving the breath test be done with precision and pursuant to established procedures—small variances in procedures can result in huge variances in results.

This theme helps explain to jurors how a sober person can obtain a .16% breath test result. Jurors will accept the notion that a procedural error may result in some inaccuracy in the test outcome, but most jurors legitimately wonder how a routine error could possibly produce a result that is more than two times the legal limit. After all, the jurors’ own bathroom scales seldom have such error rates. To many reasonably minded jurors it seems that it would take an error of seismic proportions to take a breath test from a true value of .06%, to a reported test value of .16%. The answer to these understandable questions is to emphasis the common theme about small variances resulting in huge variances.

 

PRACTICE TIP

One way to illustrate the common theme is to show your empty hands to jurors during opening statement. Explain that what is in your left hand (which has nothing in it) is what the naked eye would see if a person blew a 0.00% into a breath machine: i.e., nothing. Then hold up your equally empty right hand. Explain that this is what a .16% alcohol level would appear like to the naked eye. This hand too has nothing visible in it. What can be seen is that the difference between a 0.00% test and a .16% test is an invisible amount of alcohol. Due to the fact that we are measuring invisible amounts of alcohol, it is apparent that it does not take much of an error to wildly distort the results. The same open hand visual can be used during your questioning of the prosecution and defense’s expert witnesses. The image can then be shown one concluding time during your closing argument. In this way the common theme is weaved continuously throughout the trial.

§12:15    Checklist for Attacking Breath Tests

• Use a systemized approach to review the defenses available.

• Employ the common theme throughout all stages of the case. Repeat this often: Because breath testing involves the analysis of microscopic amounts of alcohol it is critical that everything involving the breath test be done with precision and pursuant to established procedures—small variances in procedures can result in huge variances in results.

• Obtain and review the calibration and maintenance records.

• If the records seem perfect, see if there is still something that can be said about the records. For example, determine when the last time the thermometer in the simulator was checked for accuracy.

• Scrutinize the breath operator’s qualifications and how the test was administered. Pay particular attention to whether or not the required observation period was complied with.

• Look for opportunities to introduce evidence of the variability of the 2100 to 1 ratio. Do not give up on this issue, even if the court repeatedly rules against you. Perhaps the court’s pangs of guilt in denying you the opportunity to tell the jury the truth about breath testing, will pay dividends for you with other objections.

• Review second and third line defenses after you have canvassed the availability of first line defenses.

• Include in your defense the fact the breath machine does not measure specifically for alcohol even if you are not making this you main defense. It is an easy claim to advance, and it will diminish the breath machine’s perceived value. This will help you in what ever other defense you employ.

• Hire an expert.

[§§12:16-12:19 Reserved]

B. First Line Defenses

1.  Calibration of the Machine

§12:20    Review Calibration Records

Examine the calibration records of the breath machine. If you do not review the records it is difficult to object that the machine was improperly maintained. [Bollinger v. Lohman, 936 S.W.2d 870 (Mo. App. 1997) (the lack of objection precludes a claim that the breath machine was not properly maintained).]

The purpose of this review is to see whether there is documentary evidence that the device was working properly. Absent this, the test may not even be admissible. [State v. Caswell, 769 A.2d 387 (N.H. 2001) (test results inadmissible as the prosecution did not prove preventive maintenance check had been performed).]

If the records reveal that the device was not functionally properly the defense is fairly simple: the breath machine was not functioning. This is an effective defense because the prosecution must establish that the breath test has been conducted in accordance with the rules, including the successful completion of the required preventive maintenance check and the certification of the Intoxilyzer’s accuracy. [State v. Caswel, 769 A.2d 387, 390 (New Hampshire 2001); City of Bowling Green v. O’Neal, 682 N.E. 2d 709 (Ohio App. 1996) (Government has burden of proof to show breath machine was working even during the defendant’s motion to exclude the evidence).]

As the party offering the breath test results, the State bears the burden of laying the foundation for admitting those results into evidence. [Stewart v. State, 754 N.E.2d 608, 611 (Ind. App. 2001).]

The records can usually be admitted by the prosecution as a business record or as a self authenticating document. [Grady v. State, 962 S.W.2d 128 (Tex. App. [1st Dist] 1997) (Intoxilyzer inspection records held admissible as business records because court did not find they were prepared for any specific litigation); Callahan v. State, 811 So.2d 420 (Miss. App. 2001) (pursuant to Mississippi Rules of Evidence 902(1) the documents are self authenticating); Anderson v. Commonwealth, 486 S.E.2d 115 (Va. App. 1997) (the police officer administering the breath test is permitted to testify that breath machine had been tested within the required time period even thought he officer did not have any personal knowledge of this fact).]

The records do not always reveal totally errant machines. Still, it does happen enough that the records need to be examined. When there is evidence in the records of significant problems with the maintenance and calibration of the breath machine, the attack on the breath test is usually incurable for the prosecution.

Furthermore, there is more to attacks based on the maintenance and calibration records than simply hoping for proof that the breath device was not working. Remember, the defense does not have to show the machine was malfunctioning; the prosecution must prove that the apparatus was working.

 

CAUTIONARY NOTE

Failure to review the records may open you up to claims of ineffective assistance of counsel if there is something in the records that would have exonerated your client.

PRACTICE TIP

Avoid describing crime laboratories in court by their full official names. For example, GBI sounds less impressive than the Georgia Bureau of Investigation. Similarly, DOJ is less striking than the Department of Justice.

In a case involving an accident with a SUV that rolled over upon impact, I decided to describe the accident as the SUV rollover. By the second day the prosecutor was calling the crash the SUV rollover. I thought to myself, some of the stuff in these books actually works.

—From The DUI Wars

§12:21    Frequency of Certification Varies

How frequent breath machines must be certified for accuracy varies from state to state.

EXAMPLES:

• Connecticut requires that checks be conducted prior to and after every breath test. [State v. Morelli, 595 A.2d 932 (Conn. App. 1991) (thirty-five minute delay meets the requirement).]

• California requires a calibration check to be performed every 10 days or every 150 subjects tested, whichever occurs first. [Title 17 California Code of Admin Regs §1221.4(a)(2)(B).]

• Wisconsin mandates that the breath equipment needs to be certified at intervals not exceeding 120 days. [Wisconsin Stat. §343.305(6)(b)3.]

• New Hampshire requires that a check be done every six months. [N.H. Admin. Rules, He-P 2207.05(d).]

• Georgia only demands that each breath instrument be checked periodically for calibration and operation. [GBI Rule 92-3-.06(8).]

§12:22    Distinguish Between Calibrations and Calibration Checks

 

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