Albuquerque DWI Lawyer: Discrediting Breath Tests
“The breath machine says I blew over the legal limit: Does that mean I’m guilty?” This is a question clients ask all the time. If you were arrested for a DUI/DWI and told that you blew over the legal limit your first feeling was likely dismay. You probably thought “Well I was driving and this machine said I was over the legal limit, so I guess all I can do is plead guilty.”
Now is when you need a good DWI lawyer. An experienced DWI lawyer in Albuquerque knows that breath tests are often fraught with errors and susceptible to attacks. Let’s walk through the basics of the possible attacks:
Illegal Police Actions
Dismissal of the Case
Under the 4th Amendment you have the right to be free from unreasonable seizures; the remedy is dismissal. Through consultation with you and a review of discovery, a good Albuquerque DWI lawyer will identify the weak points in your case, and use his knowledge of the law to convince the court the stop of your vehicle and your arrest were unreasonable and dismissal is required.
Suppression of the Breath Test
Alternatively, the officer may have ignored the legal protections to which you are entitled — such as failing to (accurately) read you your Miranda rights, not honoring your requests for an attorney, or failing to tell you that you can refuse the test. An Albuquerque DWI lawyer will fight to get the results suppressed if the officer erred.
Suppressing the Breath Test for Failure to Follow Maintenance or Testing Procedures
Courts require breath machines to undergo basic maintenance. A DWI lawyer in Albuquerque can acquire and decipher the maintenance records for the machine on which you were tested. Some maintenance issues result in suppression of test results. Other times, a jury can be convinced that machines with a history of problems are lemons.
A variety of procedures must be followed in conducting a test. An officer must check your mouth to make sure tongue rings, chewing tobacco, and other substances that could give a false reading aren’t present; the officer must wait a certain amount of time after that check before having you take the test; and the officer must run a few preliminary tests through the machine to ensure it is in working order. Failure to follow these procedures is evidence that the test result is not correct.
Attacking the Number
Even if everything else was done right, your Albuquerque DWI lawyer still has two types of direct attacks on the number.
No machine is 100% accurate or precise. Think about that digital scale in your bathroom. Hop on three times — get three different numbers. Breath machines are the same. A DWI lawyer knows how to show a jury that it is reasonable to think the machine’s result was too high due to standard variation in the test. Additionally, a DWI lawyer can attack the assumptions behind the machine’s math. One example is that the machines are often calibrated to assume your breath is cooler than it is, which will increase the result.
Various health and medical issues can produce an inaccurate result. If you have acid reflux, you could regurgitate stomach alcohol; if you have diabetes, your breath can produce alcohol all on its own. If you had a fever, you result will be inaccurate due to basic physical laws of gases.
Proving to a Jury Your Consumption Couldn’t Lead to a High BAC
Look, everyone knows that machines make mistakes. Why did your computer crash? Why does that light in your car start flashing and then just stop? Who knows? But we all know it’s happened. Breath machines are no different from any of these other machines.
There’s a very well-accepted scientific principle called “Widmark’s Formula” which can calculate someone’s BAC based on numbers of drinks consumed and other factors. With defense witnesses, receipts, or good results on Field Sobriety Tests, your DWI lawyer can attack the reasonableness of the test result.
Contact an Experienced DUI/DWI Lawyer in Albuquerque
This is only a brief overview of what an experienced DUI/DWI lawyer might be able to do to attack a breath test result. But as you can see, there’s no reason to despair just because a machine gave you a certain number. If you have been charged with DWI, call Salim A. Khayoumi at 505-333-8613 for a zealous defense.