Should I request an attorney before I take the breath test?

THE DUISEATTLE.COM BLOG : Should I request an attorney before I take the breath test? window.fbAsyncInit = function() { FB.init( { apiKey: 'a279adbe87e2b3c505e777af99a5260d', xfbml: true, version: 'v2.2' } );};( function() { var e = document.createElement( 'script' ); e.async = true; e.src = document.location.protocol + '//connect.facebook.net/en_US/sdk.js'; document.getElementById( 'fb-root' ).appendChild( e );} )(); THE DUISEATTLE.COM BLOG Your 2015 Community Resource for DUI and Criminal Traffic Defense in Washington State. Writings of Seattle DUI Lawyer and Seattle Criminal Lawyer W. James Kotlowski. A Discussion of Washington State DUI, Physical Control, Felony DUI, Vehicular Assault, Reckless Driving, Reckless Endangerment, Negligent Driving, Deferred Prosecution, Department of Licensing and Criminal Traffic Law Issues. OVER 20 years of experience. Call or Text right now - 206.335.2422 for a Free Consultation. HomeArchivesProfileSubscribe Lawyer Walter Kotlowski | Top Attorney DUI When can I enter a deferred prosecution?Who pays for the deferred prosecution treatment?What makes you eligible for a deferred prosecution?Can I waive Arraignment on my DUI?Do the "mandatory" DUI 30-day probation "violations" apply to reductions?What is Day Reporting in Seattle Municipal?Can I vacate a DUI or Physical Control?Will I receive "good credit" credit on EHM time?Are DUI arrests down in Washington?What happens if I do not meet the 4-month Ignition Interlock requirement? Search OFFICEContact Information
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April 12, 2015 Should I request an attorney before I take the breath test?Absolutely. Upon arrest for DUI, you should ask to speak with an attorney immediately or as soon as possible. Do not make any statements to the police. There is an attorney (public defender) on call for that purpose. The officer will help you get in touch with them.

Posted at 07:32 AM in breath test machine, Right to Attorney | Permalink

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What happens if you refuse to take a breath test?

The breath test is one of the more notable incidents during the course of a driving under the influence arrest, mainly because there are myths out there about being able to "refuse" this test. We spoke about the topic of breath tests last summer, and the fact that most states -- including Minnesota -- have an "implied consent" law, which simply says that if you have a driver's license, you inherently agree to take a breath test in the case of a lawful DUI arrest.

But what happens if you refuse the breath test anyway? What are the consequences, and what does it mean for the case against you?

First of all, it's important to again say this: you are compelled to take a breath test when you are lawfully accused of DUI. You can still refuse the breath test if you want to, but it will not help you in any meaningful way.

So let's get to the consequences of refusing a breath test. If you refuse, you will be subject to losing your license, and likely you will face jail time. As if those punishments weren't enough, your refusal to take the breath test will likely be used by the prosecution to paint you as a guilty person trying to hide his or her violation of the law.

At the same time, your refusal is unlikely to prevent the police or the prosecution from obtaining the evidence they need. In other words, they will find other ways to discover your blood alcohol content -- probably via blood test -- even if you refuse the breath test.

Source: FindLaw, "Can I Refuse a Breath Test?," Accessed Feb. 26, 2015

Tags: Breath Test Refusal

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To Blow or Not To Blow – Should I Take The Breath Test

To Blow or Not To Blow – Should I Take The Breath Test | Orlandoduiteam#topnav ul li a,.sidebar h4,.tk-news-gothic-std{font-family:"news-gothic-std",sans-serif;}p{margin-left:0 !important;}a{color:#0D8BB7 !important;} Orlando DUI Team Published by Orlando, Florida DUI Lawyers :: Katz & Phillips, P.A.(321) 332-6864 HOMEBLOGCONTACT US David S. Katz Founding partner
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As a DUI practitioner, the most frequent question I am asked is, “should I take the breath test?” The answer is not a simple “yes” or “no.” First, it is important to know that under the ethics rules of the Florida Bar, an attorney cannot give advice to someone to break the law. By law, you are required to take the breath test if you have been lawfully arrested for DUI. Therefore, my answer is required to be, “yes, you should take the test.” However, even without the requirement that I answer yes, this would likely be my answer anyway.

If you refuse to take the breath test, the prosecutor will argue that the reason you did not take it is because you knew you were guilty and you did not want a jury to know “that number.” This is called consciousness of guilt. It is a strong argument for the prosecution. Of course, if you do not take the breath test, a skilled DUI Defense Attorney can counter that argument, but it is a persuasive argument for the other side.

If you do take the breath test, a skilled DUI Defense Attorney should be able to make numerous challenges to the admissibility of the test. In Florida currently, we are challenging the admissibility of the breath test based on machine errors, human errors, source code issues and non-compliance with the administrative rules that govern the procedures for breath testing.

In Orange, Osceola, Seminole, and Lake Counties, we have successfully been able to keep breath test results out of our cases for many years. The battle over admissibility of results is still being fought in other counties throughout the state. The two most recent challenges are based on the Florida Department of Law Enforcement’s failure to follow the administrative rule. These will be discussed in the next two blogs.

If you are ever faced with the decision to take the test or refuse, remember that in Florida a first refusal is not a crime, however, your refusal to take the test can and will likely be used against you in court. If you refuse to take the test and you have previously refused to take it, you are committing a separate crime which is punishable by up to 1 year in jail, even if you beat the DUI charge.

Blow or refuse, the choice is yours, however, with the right lawyer fighting for you, you may be better off taking the test. The results can only hurt you if a jury hears about them.

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Will the roadside portable breath test (PBT) at the vehicle be used in my DUI case?

THE DUISEATTLE.COM BLOG : Will the roadside portable breath test (PBT) at the vehicle be used in my DUI case? THE DUISEATTLE.COM BLOG Your Community Resource for DUI and Criminal Traffic Defense in Washington State. Writings of Seattle DUI Lawyer and Seattle Criminal Lawyer W. James Kotlowski. A Discussion of Washington State DUI, Physical Control, Reckless Driving, Negligent Driving, Deferred Prosecution, Department of Licensing and Criminal Traffic Law Issues. 20 years of experience. Call or Text - 206.335.2422 for a Free Consultation. HomeArchivesProfileSubscribe Lawyer Walter Kotlowski | Top Attorney DUI How many days do I have to request a DOL Hearing?Will a DUI probation violation suspend my license?Will my alcohol evaluation be accessible by the public?Am I entitled to an attorney at my DUI Probation Violation Hearing?Is Washington State coming out with a new breath test machine?Will the roadside portable breath test (PBT) at the vehicle be used in my DUI case?Will my license be punched when arrested for DUI?What happens at my 1st DUI Court appearance?How many days do I have to appeal a DOL Decision?How many Jurors will be in my DUI Trial? Search OFFICEContact Information
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Video emerges of Texas judge who failed sobriety test and DUI charges dropped | Daily Mail Online

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« Will my license be punched when arrested for DUI? |Main| Is Washington State coming out with a new breath test machine? »

December 08, 2014 Will the roadside portable breath test (PBT) at the vehicle be used in my DUI case?No. The portable breath test (PBT) is not admitted into your DUI case-in-chief that will go before the jury. The PBT is only used to establish probable cause to arrest and even to be used for that purpose - the officer or trooper must follow the Washington Administrative Code (WAC) protocols correctly. 

Posted at 10:05 PM in PBT, probable cause to arrest | Permalink

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Field Sobriety and Breath Test Results Challenged in Appeal by Pennsylvania DUI Defendant

An appeal in the Pennsylvania Superior Court claimed that a field sobriety test conducted on a snow-covered road, along with breath testing conducted without the 20-minute observation period required by Pennsylvania law, were insufficient to support a conviction for driving under the influence (DUI). The defendant/appellant in Commonwealth v. Favinger challenged the sufficiency of the evidence against him and the legality of the traffic stop that led to his arrest. The Superior Court ultimately affirmed the verdict and sentence, but its opinion offers a useful overview of the different ways that prosecutors may establish that a defendant was impaired by alcohol in a DUI case.

A state trooper pulled the defendant over at about 3:20 a.m. on January 29, 2011. The trooper testified that the defendant continued to travel about half a mile after the trooper activated his emergency lights, finally stopping in a driveway. He claimed that he detected the odor of alcohol, and that the defendant’s eyes were “bloodshot and glassy.” The defendant agreed to field sobriety testing, which the trooper claimed he failed. Breath testing conducted after the defendant’s arrest showed blood alcohol content (BAC) of 0.128 percent. The defendant was later convicted of DUI–general impairment and DUI–high rate of alcohol.

The defendant raised six issues on appeal relating to three broad issues: (1) whether the breath test evidence was sufficient to support the conviction, (2) whether the field sobriety testing evidence was sufficient, and (3) whether the traffic stop was valid and supported by probable cause. In its opinion, the Superior Court cited a 2013 case, Commonwealth v. Teems, which identified the standards for proving guilt under the Pennsylvania DUI statute. Teems specifically states that BAC evidence is not required. The state may present evidence of the defendant’s behavior, including general demeanor and appearance, behavior towards law enforcement officers, and performance on field sobriety testing, in order to prove that a defendant is “incapable of safely driving” a motor vehicle.

On the issue of breath testing, the defendant claimed that the officer administering the test did not observe him for “at least 20 consecutive minutes,” as required by state regulations, prior to the test. The court noted evidence showing that the arresting officer also administered the breath test, and that he began the 20-minute observation period at about 3:50 a.m. He administered a breath test at 4:11 a.m. that did not produce an adequate breath sample. Two additional tests, performed about five minutes later, showed BAC of 0.128 and 0.131 percent.

The court also rejected the defendant’s argument that the presence of snow on the roadway during the field sobriety test, which caused the defendant to slip and fall, made the test results unreliable. The arresting officer’s testimony, and the jury’s conclusions based on that evidence, were adequate to support the guilty verdict. The court reached the same conclusion regarding the trooper’s testimony regarding probable cause to initiate a traffic stop, which claimed that the defendant’s vehicle veered out of its lane of traffic in violation of state law.

If you have been arrested or charged with DUI, you should consult with a knowledgeable and experienced DUI attorney, who can advise you of your rights and help you plan the best possible defense. We have dedicated 100% of our law practice at Levow & Associates to DUI defense. Please contact us today online or at (877) 975-3399 to schedule a free and confidential consultation to see how we can help you.

More Blog Posts:

Pennsylvania DUI Defendant Argues on Appeal that Verdict Went against Weight of Evidence, Gets New Trial, Pennsylvania DUI Lawyers Blog, May 13, 2014

Court Sides with Police Testimony over Video Evidence in DUI Case, Pennsylvania DUI Lawyers Blog, May 1, 2014

Pennsylvania Superior Court Affirms DUI Conviction, Demonstrating the Importance of Preserving Error at Trial, Pennsylvania DUI Lawyers Blog, March 20, 2014

Photo credit: By Niagara (Own work) [CC-BY-SA-3.0 or GFDL], via Wikimedia Commons.

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Should I Take a Breath or a Blood Test?

One of the most common questions I get as a DUI defense attorney is “Should I have taken a breath test or a blood test?” As with many questions in DUI law, the answer is, “It depends.”

Just to be clear, I’m talking about a breath or blood chemical test required under California’s implied consent law. This does not include the pre-arrest preliminary alcohol screening test. Although a breathalyzer, the “PAS” test is not a chemical test and is not required under California law. The chemical test, on the other hand, can either be a breath or a blood test and is required under California law once a person is lawfully arrested on suspicion of a California DUI.

The DUI blood test is much more accurate than the DUI breath test. The blood test is far less likely than a DUI breath test to produce a false reading. Another benefit of a DUI blood test is that a sample of the blood is saved for future testing by the DUI suspect’s defense attorney. The defense attorney can have the sample tested by its own blood analyst to contradict the results of the prosecutor’s analyst. This is called a “blood split” and it is commonly used in DUI defense.

Having said that, the blood test can still be subject to scrutiny. See my previous post: https://www.duiblog.com/2014/09/15/the-dirty-skin-defense/

In other words, the blood test may be good for someone who is under the legal limit because it is more accurate. The blood test might be bad for someone who is over the legal limit because it is more difficult to refute the accuracy.

The DUI breath test, on the other hand, is far less accurate than the DUI blood test. Breath tests can provide false readings for a number of reasons. See Lawrence Taylor’s post: https://www.duiblog.com/2014/09/09/are-breathalyzers-accurate/

While California defense attorneys cannot challenge the unreliability of breathalyzers on a general basis, they can provide evidence that the particular breathalyzer used on the DUI suspect was inaccurate.

The breath test may be good for someone who is over the legal limit because it is easier for a California DUI attorney to refute the results. However, many people who are actually under the legal limit may test over because of the breath test’s inaccuracies.

If you are fairly confident that your blood alcohol content will below the legal limit of 0.08 percent, you’re probably better off opting for the blood test because it will accurately show that you were, in fact, under the legal limit. However, if you think there is a chance that you could be above the legal limit, you might be better off opting for a breath test so that your attorney can challenge the results if you test above the legal limit.

This entry was posted on Monday, November 17th, 2014 at 7:28 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.

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DUI Task Force Cop Admits Falsifying Breath Test Readings

The latest news fresh from the front lines of MADD’s "War on Drunk Driving":

DUI Cases in Jeopardy After Richmond County Deputy Admits Falsifying Readings

Richmond County, GA. Nov. 19 – The forced resignation of a deputy assigned to the DUI task force could affect the prosecution of hundreds of cases, according to those in the legal community.

Erik Norman faced mandatory resignation from the Richmond County Sheriff’s Office on Oct. 19 after a prosecutor reported that Norman told her he had falsified readings from a hand-held alcohol-testing device.

Norman told the department’s internal affairs division that he had done it only “once or twice” but couldn’t recall exactly which cases were involved. Norman’s credibility is gone now, no matter how many times he falsified readings, said Augusta attorney Robert “Bo” Hunter, who prosecuted drunken driving cases as the Richmond County State Court solicitor from 1988 to 1996… Even worse, Hunter said, is that there probably were people charged with driving under the influence who shouldn’t have been.

Norman, hired as a jailer in July 2002, was transferred to the DUI task force in March 2009. An accurate count of his DUI convictions cannot be made through court records, but during his time on the task force, he arrested an estimated 250 to 400 people.

State Court Solicitor Charles Evans said his office has 62 pending DUI cases in which Norman was the arresting officer. Each will have to be judged on its merits to determine whether to continue prosecuting them as DUIs. If necessary, the office will bring in Norman as a trial witness, Evans said.

The Georgia Peace Officer Standards and Training Coun­cil is investigating to determine whether Norman can keep his certification, said Ryan Powell, its director of operations. Unless he is arrested on felony charges or his certification is suspended, Norman is free to work as an officer, Powell said.

Falsifying evidence is a felony – making false statements – but prosecuting Norman for it would be difficult, District Attorney Ashley Wright said. A prosecutor would have to prove in which case Norman falsified the results, and there is no way to uncover those cases without Norman’s admission. He claimed he didn’t know which cases were falsified…

Do you really think this Georgia deputy is the only cop out there falsifying breathalyzer readings to justify his DUI arrest? And by the way, notice Deputy Norman’s sterling qualifications to investigate and arrest citizens for drunk driving:  He was hired in 2002 to be a jailor — and after seven years of guarding jail cells, he was transferred directly to the DUI task force.  Do you still think DUI cops are highly trained and qualified?

This entry was posted on Sunday, November 20th, 2011 at 9:37 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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Coercing Breath Tests With Threats of Pain

I’ve written in the past about the growing practice of forcibly taking blood from a drunk driving suspect, sometimes done by a cop in the field.  See, for example, Taking Blood by Force, Forced Blood Draws by Cops: Constitutional?, Forced Blood Draws by Cops Spreading, Blood Draws in the Back Seat by the Dashboard Light and Forced Blood Draws: Citizen Backlash?.   

Here’s a new tactic: threaten the suspect with strapping him down and painfully jabbing a needle into him (however many times it takes to get a blood sample)…unless he agrees to "voluntarily" take a breath test.

Texas Blood Test Aims at Drunk Drivers

Wall Street Journal, Dec. 11 —  Texans arrested for drunken driving should be prepared to give blood this holiday season.

Cities and counties across the state are increasingly demanding that drunken-driving suspects who refuse to take breathalyzer tests submit to blood tests that measure the amount of alcohol in their systems.

The blood-test policy—dubbed "no refusal" by law-enforcement officials, because it prevents drivers from refusing to provide evidence of intoxication—has grown from a novel procedure used in a few Texas jurisdictions to an initiative used by police statewide, particularly during weekends and holidays when drunken driving is most common. The no-refusal initiative has also caught on in other states, including Florida, Illinois, Louisiana and Missouri…

Texas courts have uniformly upheld the constitutionality of mandatory blood testing, attorneys said. But criminal-defense lawyers say such mandatory tests trample suspects’ rights to be free from unreasonable searches and seizures. "It’s an erosion of civil liberties," said Austin defense lawyer Samuel Bassett. "If we can poke people involuntarily for evidence, where do we draw the line?"…

Police are empowered to strap a suspect to a chair, if necessary, to obtain a blood sample. That allows blood to be drawn quickly—a key benefit to prosecutors because blood-alcohol concentrations dissipate over time…

In El Paso, police find that the policy actually encourages people to submit to breath tests. "We give people the option of blowing into a tube or getting poked with a needle," said Lt. Rod Liston. "People increasingly are going with the less painful option."…

Hmmm…Threatening to "poke" a suspect with a needle actually "encourages" him to submit to a breath test?  What a surprise!  But I guess this wouldn’t be "torture" using the Attorney General’s definition requiring organ failure.

So:  "Submit to a breath test…or we’ll strap you into a chair and jam needles into you."   Welcome to the War on Terrorism…I mean, Drunk Driving.

This entry was posted on Monday, December 12th, 2011 at 2:18 pm and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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The Breath Machine (EC/IR) in DUI Cases

Posted On: February 16, 2009 by Bruce M. Robinson

At this point we all know that the breath machine, in Maryland it's the EC/IR, in DUI/DWI cases is a vital part of the DUI conviction process; that's why the legislature has its very own law for blowing a number of .08 or greater into the contraption. The law is known as Maryland Transportation Article 21-902(a)2 or the per se law. This law says that if you blow a .08 or higher, your are in violation of this statute and therefore you are GUILTY of this crime, irrespective of any other details regarding your case. Pretty stringent huh? Particularly if you consider that these machines are not particularly accurate in determining a person's BAC (blood alcohol content).

How can I say these machines are not particularly accurate? Well, don't take my word for it, I'm just a lawyer. However we should take the word of very learned and highly regarded experts in the field who have written numerous articles on these machines. In a nutshell, the machine utilizes a partition ratio (a formula) to calculate the ethanol that it senses on ones breath and to extrapolate out what it believes a person's blood alcohol content should be. The machine then spits out that number on a cash register sized piece of paper and you then have to fight the machine or be convicted of DUI.

The problem is that the machine utilizes a constant partition ration number of 2100:1 for all people. So the machine multiplies the parts of alcohol that it senses in the breath, it calculates that number by 2100 and it says the result is your BAC or blood alcohol content. Big, small, tall, short, male, female, black, white, Asian makes no difference the machine calculates 2100:1 partition ratio. Are all people made alike? Does the 6'8" NFL player have the same body makeup as the 5'2" soccer mom? I don't think so and either do the experts in the field.

The reality is that we all have different partition ratios that can range from as low as 1500:1 to as high as 2500:1 or higher. The machines however are programmed to take an average number of the average person. The problem is that we are all not average people, if we were we would all be 5'9" and 170lbs. So when the machine uses the wrong number, which does not match the partition ratio of the person tested there is a substantial chance that the number the machine yields will be erroneous; it could be erroneous by as much as 10-20% or more.

In addition to the foregoing, the method of the blow, or how you blow into the machine also has an impact on your number. There is a saying among those that work in field "the harder you blow, the higher you go" so when the breath test technician tells you to hold your breath and blow in the machine as hard as you can he is really saying "lets artificially maximise the number that you blow so that I can get an easier conviction in court."

The machine requires a steady exhalation from the defendant which should last roughly 5 seconds in duration, the machine then measures the volume of ethanol in the trailing exhalation right before the volume of breath dissipates. If you hold your breath and blow as hard as you can, you are artificially maximizing the volume of ethanol exhaled into the machine from the deep lung which is then calculated at the partition ration as described above.

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Can the Atkins diet affect the Breath Test?

Posted on April 24, 2007 by Ken Gibson

A Virgin Atlantic Pilot found out the hard way that the Adkins diet can affect the breath test when he was removed from a transatlantic flight after failing a breathalyser test. He has finally been cleard of this charge after it was discovered that his low-carbohydrate diet triggered a false reading.

Subsequent blood tests on the pilot showed a blood-alcohol reading of just over a fifth of the limit set for airline pilots - which in turn is a quarter of the drink-drive level.

The pilot’s nightmare began when he went through the security checks for flight crew one of the guards thought he could smell alcohol on his breath.

The pilot was allowed to board the plane but about 45 minutes before take-off police got on the aircraft and breathalysed the pilot in the cockpit using a machine calibrated to aviation levels. The pilot failed this test and was escorted off the plane.

A standby crew was called and the pilot was taken to the police station, where blood tests were taken.

He was suspended from duty and released on bail.

The pilot’s blood was sent it to a laboratory where they found only a minimal blood alcohol reading. After the lab tested two more samples, he was exonerated.

Even non-drinkers are capable of producing trace elements of alcohol in their bloodstream, which would explain the level in the pilot’s blood.

The breathalyser reading was attributed to the pilot’s low–carbohydrate diet, which can affect the smell of a person’s breath and their metabolism.

Breathalysers mainly detect ethanol (the type of alcohol found in drinks) But some machines are unable to distinguish ethanol from acetone, a chemical that is produced by people on low-carbohydrate diets such as the Atkins diet. In normal circumstances this is not a problem but with the alcohol limit in the aviation industry is set at about a quarter of the normal “intoxication” level (.02) even these traces can result in a positive reading.

Where this is most likely to cause problems is when a person has been drinking, but not to the level of being intoxicated (.08). You then add the fact that the person is on a low carbohydrate diet, which will produce acetone in their breath, and there is a strong likelihood you will end up with a unreliable result from the breath testing machine.

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