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Breath Test Defenses

Missouri Breath Test Defenses

DWI lawyers in St. Louis and around Missouri know the result of a breath test is always a key piece of evidence in a DWI case. Unfortunately, many people trust the result of a breath test without considering whether the result is accurate. There are many different breath test defenses that can affect the results of a breath test machine, but the focus here is on the specific problems with the breath testing system in Missouri. There are several glaring problems with the Missouri breath testing program, and these problems could affect every breath test in the state.

Rising Blood Alcohol

One of the most effective defenses to a breath test result in a DWI case is the Rising Blood Alcohol defense. Experienced DWI lawyers in Missouri know there is no time limit within which the police must give a suspect in a DWI case the breath test. In many DWI cases the breath test is administered between one and two hours after the suspect was actually driving the vehicle. A person is only guilty of a DWI in Missouri if that person was intoxicated while actually operating the vehicle.
A person that just finished a drink at a bar and then left to make a five minute drive home would have a much higher blood alcohol content an hour after finishing the drink than just a few minutes after finishing the drink. It takes time for alcohol to be absorbed into a person’s blood after the drink or drinks have been consumed. The difference in time between when a person consumes an alcohol beverage and when that alcohol is absorbed into the person’s bloodstream leads to the Rising Blood Alcohol defense.
The Rising Blood Alcohol defense in a DWI case is so effective because it means the person was not intoxicated at the time he was driving the vehicle.  This is more of a timing defense than a defense against the breath test itself. This DWI defense does not allege a problem with the result of the breath test, but instead alleges that the breath test is not accurate as to the person’s blood alcohol content at the time he was driving. This defense is best used when a person has quickly consumed one or even a couple of alcoholic beverages shortly before getting behind the wheel to drive.

No Duplicate Testing

Probably the most egregious problem with the Missouri breath testing program is the lack of duplicate testing. In a state where duplicate testing is required (which is the majority of states), an initial breath test is given, then after a specified time period such as 10 minutes, a second breath test is given. The two breath tests can then be compared and much can be learned from that comparison. The comparison can show if the person’s blood alcohol content was rising or falling at the time of the testing.  This evidence could lead to a Rising Blood Alcohol Defense.
More importantly, if the two breath tests provide wildly different results, then both results are thrown out because one of the two results was skewed for some reason.
Duplicate testing is an important safeguard against unreliable breath tests, and it would cost Missouri no additional funds to implement the program, but Missouri still does not require duplicate testing.

Lack of a Proper Observation Period

Prior to the administration of a breath test, it is important to have an observation period where the police officer can watch the suspect to make sure the suspect does not eat or drink immediately prior to the breath test. Eating, drinking, smoking, and belching are among actions that could alter the breath test results. If any of those or other issues affect the breath test then the breath test result will not be accurate. For this reason, the observation period prior to a breath test is a crucial step toward a reliable breath test result.
The companies that manufacture the breath testing machines used in Missouri recommend a 20 minute observation period prior to a breath test. It is the companies’ stance that it takes 20 minutes for any contaminates like food or tobacco to dissipate from a person’s mouth. Even with this 20 minute recommendation from the manufacturers, Missouri only has a 15 minute observation period. Similar to duplicate testing, it would cost Missouri nothing to change the breath testing regulations to require a 20 minute observations period.

Other Missouri Breath Test Issues

Missouri continues to use outdated breath test machines for the majority of DWI investigations conducted in the state. Until recently the only two breath test machines approved for use in Missouri were terribly outdated. Recently, a new handheld device, the Alco-Sensor IV began to be used in Missouri for evidentiary breath test purposes. One of the two old devices, the Intoxilyzer 5000 has so many problems the State of Minnesota spent $1.5 million in 2010 to replace every single Intoxilyzer 5000 with a better device. Unfortunately, Missouri still insists on using the Intoxilyzer 5000 and the less flawed, but still problematic Datamaster 5000.

Challenge Your Breath Test Results

If you have taken a breath test after a DWI arrest, it is important to consult with an experienced DWI attorney. There are many issues that could have altered the results of the your breath test. Contact The Law Office of Jason A. Korner at 314-409-2659 or click here to fill out an information form to schedule a free consultation about the breath test and your DWI arrest.