Breath test not always believable

Posted by Peter Carini | Feb 09, 2016 | 0 Comments

Jury suspicious of .22 BAC in DUI case


Some people will say the if the breath test is over the legal limit, you're toast. Most lawyers I speak with agree. I do not.

I can tell you that the breath test result sometimes is so obviously wrong that it is meaningless. Let me give you an example.

In early 2016 I had a trial where I thought that it was obvious that the breath test result was way off. The breath test final result was .22. The officer followed my client from a local bar, saw a few driving violations and pulled the client over. According the officer and his training, this driver “failed” every single field sobriety test and had a breath test result of .22 percent.

When I saw the video, the driver seemed to be totally normal when doing regular stuff like walking, talking, answering questions, getting out the car. You get the idea. Yet the breath test is saying that this person is wasted. Would common sense win out over the government's machine and a failed breath test result?

Usually, I will use an expert to deal with the breath test result. In this case, my client just did not have the money to go that route. Instead, we went low tech. I made copies of the video of the driving and the field sobriety tests and the arrest and I had the client show it to people who knew this person, as a friend. I wanted to know if they where thinking like me. Did they think that my client was acting normally? After all, who would know whether the client was acting normal than people who know this person well? They saw a normal person just like I did.

They testified, the jury used its collective common sense, and rejected the evidence that went against the presumption of innocence. The jury did exactly the right thing. They honored the Constitution. They honored our American heritage. They followed the law. I could not have been more proud than when they returned with a unanimous verdict of Not Guilty.

Now, I am not saying that the jury was convinced that my client was not DUII. They may have had strong suspicions. I do not know. Lawyers are not allowed to speak with jurors either during or after a case. But I do know that they understood their job and they performed it with integrity.

The prosecutor and the judge (a former prosecutor) could not believe that the jury was suspicious of the breath test result. I could. It was what any normal human being would think. So there you go. The machine and the cop do not determine whether a person is convicted. They can be obviously wrong, even when they can't see it themselves.

About the Author

Peter Carini

Criminal Defense trial attorney. DUII law specialist.

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