At first blush, Breathalyzer results appear to be insurmountable evidence of guilt. However, there may be other challenges available, such as the validity of the arrest or stop. Furthermore, a high Breathalyzer score does not necessarily mean that the prosecutor has an open-and-shut case.
Once the jury understands that, despite all the new bells and whistles, today’s Breathalyzers are basically just like the ones that first appeared in the 1950s, they are much less willing to accept the results at face value. After all, the picture on a modern 4G HD television set looks much, much better than one from the I Love Lucy era, and if a person went to a doctor who wanted to use 1950s-era instruments during surgery, that person would probably find a new physician straightaway.
All the new bells and whistles can also work against the prosecutor, because the more add-ons a device has, the more maintenance it requires. If there is no record of such maintenance, or if the record is incomplete, the results may be inadmissible as a matter of law.
In a nutshell, the Breathalyzer measures breath alcohol and then uses that figure to estimate the subject’s blood alcohol level. Because of that extra step, as well as the Breathalyzer’s technological weakness, the results may be skewed by things like:
- Mouth Alcohol: Police officers are supposed to continually monitor defendants for at least fifteen minutes prior to their breath tests to ensure that they do not belch, vomit, or otherwise release alcohol into their mouths.
- Acetone Levels: Most Breathalyzers register these particles as ethanol, and many people, including smokers and diabetics, have high acetone levels in their bloodstreams.
- Unabsorbed Alcohol: If the subject had been drinking anytime within the past hour, that alcohol has probably not yet absorbed through the liver into the blood, so the BAC will be artificially high.
These flaws, and others like them, may especially make a difference in a borderline BAC case, such as a .08 or .09.
To drive home these points with the jury, an attorney often partners with a degreed chemist, or perhaps even an advanced chemistry student from U of H or another nearby school. Such a witness usually carries more weight than the prosecutor’s “expert,” who is probably only a Breathalyzer technician with no academic training in chemistry, physics, or another science discipline.
Contact an Experienced Attorney
Despite what prosecutors may claim, a Breathalyzer result is not necessarily proof positive of intoxication. For a free consultation with an experienced DWI defense lawyer in Houston, contact the Law Office of Jim Medley. Convenient payment plans are available.