DRASTIC Defenses to the Breath Test in a DUI Case

If you have been stopped and charged with Driving Under the Influence (DUI), the law enforcement agency probably used a breath test to measure your Blood Alcohol Content (BAC) and determine how impaired you may have been. Many elements go into whether or not a breath test delivers an accurate measurement of blood alcohol content (BAC). The acronym DRASTIC provides a way to think of some of them.

Drift: The state will present breath machines as being very technologically advanced, accurate and reliable. But all devices are subject to what is known “drift.” Drift is what happens as any machine moves away from proper calibration. While the speedometer on a car may be accurately calibrated when it leaves the factory, heat, vibration and wear and tear on the parts cause the accuracy to degrade with time. So too do the settings on a breath machine drift away from the factory specifications over time.

Radio Frequency Interference (RFI): All police use large numbers of powerful radios, with many county sheriffs broadcasting far beyond their county boundaries. RFI can interfere with breath machines, and we do not know if the RFI level is critical until the machine tells us with a warning light.

Accuracy: If there is RFI affecting a breath machine, it is like a warning light on the dashboard of a car; the light only comes on when the problem is so great that immediate action must be taken. The warning light on the breath machine may only turn on well past the point in time when the machine has produced unreliable readings, but no one knows when that happened or how many false positives the machine produced.

Substantial Compliance: The problem with arguing that problems with drift, RFI and accuracy have caused inaccurate readings is that the police only need to keep the breath machines in “substantial compliance” with the manufacturers standards. This means the machine only has be “pretty close” or “close enough” for its measurements to be treated as valid. The standard becomes kinda-sort-of-close-enough.

While no law-enforcement officer would want to use a gun, vehicle or radio that was only “kinda-sort-of-close-enough” to proper operational standards, law enforcement wants you to accept that standard when it comes to the operation of a breath machine, a machine that it will use to potentially take away your liberty.

Technology and Training: Technology is everywhere, and from cell phones and microwave ovens to supercomputers and satellites, we depend on machines, but as we rely more and more, we begin to understand that many machines are essentially computers. We all have had issues with computers picking up bugs and viruses, and having software conflicts and problems that make them unreliable at times. Does the officer have the proper training and is he licensed to operate that technology? As the complexity of the computer systems increases, the need for ever more sophisticated operator training becomes necessary.

Information: The best information you can have is not to submit to testing.

Compliance: If you comply with its test, you have made the state’s case against you. If you refuse the test, you can obtain a conditional license after 30 days, and resume driving for the rest of your sentence, should you be convicted. By taking the test, you may provide the state with the evidence it needs to convict you of driving under the influence of alcohol (DUI). By not taking the test, you remove the possibility of the state using questionable evidence against you.

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