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How Are Chemical Testing Procedures or Devices Used For Defense?


First of all, there are two types of devices. There are the ones out on the scene, and there are the ones back in the station. Typically, the portable breath devices are not certified and they’re not allowed in the court of law for the final trial. So, let’s say you’re on the scene and you blow 0.09 with a non-certified portable breathalyzer. If you go back to the station and you refuse to blow, that 0.09 value cannot be used against you in a trial because it’s not certified. A judge is not allowed to use that or consider it in any way, and neither is a jury. If you have a jury trial, all they would know is that the officer talked to you on the street, brought you back to the station and then you refused the test. So, the officer couldn’t have had any idea what your BAC was because those portable devices aren’t accurate.

Now, the certified devices are super expensive and almost no one has those. They have the more reasonably expensive ones back in the station that are permanent and give very accurate readings. But I’ve seen cases where a portable device came up with a 0.17 and it was in the middle of the daytime. In that case, my client said, “You’re whacked. I have not been drinking anything close to that. Take me to the station right now.” Within 20 minutes, he blew a 0.02. It’s physically impossible to go from a 0.17 to a 0.02 in 20 minutes. So clearly, the portable machine was way off. You can buy these portable devices online and they’re garbage.

They might say they’re coastguard certified, but they’re garbage. In one second you blow a 0.09, and 30 seconds later you blow a 0.14. Then a few minutes later, you blow at 0.02. They are just not reliable. They are indicators, but not good ones. Now, the one back at the station has to be fully certified, and they have to be checked periodically to measure up to certain standards. There is a certain standardized procedure that the police have to follow according to the Department of Public Health. One of those standards requires that the officer observe you for 20 minutes and ensure that nothing has been put in your mouth (like a cigarette, gum, candy, etc.) and that you have not regurgitated. If you throw up in your mouth during that 20-minute period and the test is performed anyway, then that test is no good.

Let’s say you got into an accident and you were shaken up. You came home and decided to drink some alcohol because you were so nervous. Suddenly you’re blowing a 0.12 after your 20-minute wait period, but who knows what your blood alcohol content was at the time of the accident. The reason that alcohol is in your system is because you drank out of nervousness after the accident occurred. This is something that has actually happened in some of the cases that I’ve handled. The devices at the stations are very powerful sources of evidence against you. If you blow a 0.049 or under in Illinois, then you’re presumed sober unless they are saying there are drugs involved as well. If you blow a 0.08 or above, then you’re presumed intoxicated, but it’s a rebuttable presumption.

You can get an expert to testify and say something along the lines of, “Look, these machines are crap. They don’t extrapolate out correctly. This is a 400 pound linebacker, and a BAC of 0.08 may not impair them at all.” In contrast, a BAC of 0.08 on a 60-pound gymnast is going to have a much more significant impact. So everything is relative to your specific factual situation, and every case is unique. That’s why you need to get the help of a decent attorney who knows what he’s doing and who won’t just say, “You’re at 0.08, you’re cooked.” That’s just not necessarily the case. It depends if you want to spend money on an expert to come in and say the machine is a bunch of garbage. I’ve seen cases in which the defendant had a BAC level of 0.10, but after hearing what the experts had to say, the judge decided that he wasn’t confident enough that that was an accurate reading. As a result, the person was found not guilty.

Can Medical Conditions Help In Defending Against A DUI Charge?

Some people are unable to give a sufficient sample due to a breathing condition. You have to blow in pretty hard for a pretty consistent amount of time. If you have bad asthma or something of that nature, then you may not be able to provide that breath sample to the sufficiency that the machine is going to register. Oftentimes people will try to avoid the machine by barely blowing into it and thinking that nothing will register. But the police officer can say, “Look, this person was blowing all around the mouthpiece. He’s doing it on purpose to avoid detection of what the true blood alcohol content is on his breath.” There have to be other medical issues that prevent people from performing the field sobriety tests.

Let’s say a person has two horrible knees and can barely standup. How are they supposed to do these field sobriety tests? Everything is unique to your specific medical condition. Sometimes people are under prescribed medication. It doesn’t mean they get a pass because the doctor prescribed OxyContin for them, and it doesn’t mean that they can take OxyContin and then drive. So, if a person is under the influence of prescription drugs, there’s a separate statute section for that. There’s also a separate section for the use of prescription drugs with the combination of alcohol. A person can blow a 0.02, but still be intoxicated by prescription drugs. Even though it’s a prescribed medication, they would still be considered impaired.

Every case is unique. You have to evaluate all of these factors in their totality in order to determine whether or not a person was truly under the influence of something, whether it be prescribed medication or alcohol. Maybe the person was just sick. They could have a horrible flu and yet have all the symptoms of a DUI (slurred speech, bloodshot eyes, poor motor skills, etc.). That doesn’t mean they are under the influence, it just means that they’re driving while sick, which probably could be less than stage two. That means they could charge the person with reckless driving or something of that nature, but it’s more likely that they wouldn’t be found guilty of a DUI, and that’s much more important.

For more information on Devices Used In DUI Defense, a free initial consultation is your best next step. Get the information and legal answers you’re seeking by calling (847) 244-4636 today.

Barry Boches, Esq.

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