Challenging the Breath Test:

          We do not yet live in a country where people can be convicted by the results of a machine.  The fact that your test result may be above the legal limit does not necessarily mean that you will be convicted in court or that you will loose your DMV hearing and have your license suspended.  Our office has won over 150 DUI/DMV hearings since 1997 and all of these cases had test results ranging from .08% to .30.  The following is a list of some questions that can affect the accuracy of the breath alcohol results as well as the admissibility of the test results: 

•  Did the officer observe you for a period of 15 minutes prior to taking the breath test?

•  Were two breath test results obtained within .02 of each other?

•  Did the officer tell you to “keep blowing” during the breath test and obtain a "deep lung" sample?

•  Did the police officer have his/her radio on during the breath test?

•  Was the initial stop by the officer unlawful?

•  Was the arrest by the officer unlawful?

•  Was the machine properly calibrated every ten days or 150 tests as required by law?

•  How accurately did the machine read the known alcohol reference solution that was used to test the machine?

•  Were you absorbing alcohol or eliminating alcohol at the time of the stop?

•  Did you finish drinking just prior to being pulled over?

•  Did law enforcement comply with Title 17 of the California Code of Regulations in obtaining your test result?

•  Was the officer trained and certified to use the breath testing instrument?

•  Was your blood alcohol level rising at the time you were stopped and therefore lower when driving than when tested?

Other Factors that Can Effect the Accuracy of DUI Chemical Tests (Breath & Blood Tests)

1. For DUI cases based on breath alcohol analysis e.g. with the Intoxilyzer or Alco-Sensor/PAS instrument:
1.1 Rising blood alcohol defense.
1.1.1 Variance associated with the accuracy of the device.
1.1.2 Violations of the regulations for chemical testing, i.e., Title 17 of the California Code of regulations.

1.2 Factors Affecting the Movement of Alcohol from Blood to Breath
1.2.1 Sample time of breath
1.2.2 Hematocrit of blood
1.2.3 Lung capacity and lung function
1.2.4 Body and breath temperature
1.2.5 Breathing pattern before and during blow
1.2.6 Blood pressure

1.3 Factors Responsible for Alcohol Contamination of Breath Samples
1.3.1 The “atomizer” effect
1.3.2 Burping and belching
1.3.3 Vomiting (Regurgitation)
1.3.4 Blood and saliva
1.3.5 Food in the mouth
1.3.6 Absorption and adsorption of alcohol by foreign objects

2. For DUI cases based on direct blood alcohol analysis for BAC:
2.1 Gas chromatography (GC) determinations
2.2 Alcohol dehydrogenase enzyme determinations
2.3 Differences for whole blood, plasma and serum
2.4 Sample collection and storage issues

3. For DUI cases based on EITHER breath analysis or direct blood analysis:
3.1 Factors Affecting Estimation of Amount of Alcohol Consumed
3.1.1 Alcohol content of alcoholic beverages
3.1.2 Serving size of alcoholic beverages

3.2 Factors Affecting the Rate of Stomach Emptying of Alcohol
3.2.1 Eating a large meal with spices, fat and/or protein
3.2.2 Drinking alcohol beverages
3.2.3 Drinking repeatedly, over a long tine versus one day
3.2.4 Drinking alcoholic beverages regularly (daily)
3.2.5 Inactivity, including sleep

3.3 Factors Affecting the Rate of Alcohol Metabolism
3.3.1 Drinker versus Non-Drinker
3.3.2 Age effect on rate of alcohol metabolism
3.3.3 Sex differences on rate of metabolism

3.4 Estimation of Blood Alcohol Concentration (BAC) Based on Testimony
3.4.1 Correction for alcohol metabolism
3.4.2 Estimation of BAC corrected for alcohol metabolism

3.5 Factors Affecting Neurological Status in DUI Cases
3.5.1 Relationship of blood alcohol levels to neurological symptoms
3.5.2 Relationship of blood alcohol levels to performance on field sobriety tests
3.5.3 Other neurological and/or medical conditions similar in appearance to alcohol intoxication
3.5.4 Alcohol and drug interactions