breath test defenses Archives - Korner Law

St. Louis Connection for Breath Test Problems

Jason Korner — Mon, 20 Jan 2020 16:19:11 +0000

Michigan Breath Test Issues Stem from St. Louis Company

Last week came news that the Michigan State Police had written a letter to all law enforcement agencies and prosecutor’s offices in Michigan to inform them of flaws with breath tests used in conjunction with DWI investigations in Michigan. A local St. Louis connection has been exposed as a major part of the problem with the Michigan breath testing machines. The machines at issue were manufactured by Intoximeters right here in St. Louis. A total of 203 Datamaster DMT machines manufactured by Intoximeters have been taken out of service in Michigan since the initial letter was sent by the Michigan State Police.

This issue has more than just a local manufacturing tie to the St. Louis area. Many law enforcement agencies in St. Louis and throughout Missouri utilize breath test machines manufactured by Intoximeters. To this point, law enforcement agencies in Missouri have not acknowledged any potential issue with the Intoximeter devices. The Michigan State Police letter did not specify the issues that had been identified with the Intoximeter devices, but any issue that took 203 devices out of service should be a cause for concern for law enforcement agencies using devices manufactured by the same company.

Small Issues Result in Big Consequences

Small issues with a breath test machine can lead to great consequences for people who blow into those machines during a DWI investigation. Many people forget that drinking and driving is legal. It is one hundred percent legal to go to a bar after work and have a drink or two, then drive home, as long as you are not intoxicated. The 0.08% blood alcohol content is often referred to as the “legal limit,” but it is really the level of blood alcohol content where a person is legally considered to be intoxicated. Therefore, the difference between a breath test result of 0.07% and 0.08%, despite being only one – one hundredth of a percent different can lead one person to being released and the other person to being charged with a DWI with a long legal fight ahead of them. It does not take much of an error in a breath test machine to make such a small numerical mistake. If a breath test machine is not functioning perfectly, if it has not been used perfectly by well-trained personnel, and if the breath test sample is not obtained according to all proper instructions, then the result of the breath test is worthless. These machines are not magic black boxes that always dispense justice, and are incapable of error. The proof of that is playing out in Michigan right now, with 203 breath test machines that were manufactured right here in St. Louis.

St. Louis DWI Lawyer Jason Korner

If you or a loved one have been arrested for a DWI in Missouri, whether there was a breath test or not, it is important to have the specific facts of the case reviewed by a lawyer that specializes in DWI defense. Jason Korner has been defending DWI cases for twelve years, and DWI defense has always been more than half of his case volume. Please call Mr. Korner’s office today at 314-409-2659 or click here to fill out the contact page and Mr. Korner’s office will contact you about the case.

Source: Fox 2 Now, Local Company That Makes Breathalyzers at the Center of Drunk Driving Controversy, January 15, 2020, https://fox2no2.com/2020/01/15/local-company-that-makes-breathalyzers-at-the-center-of-drunk-driving-controversy

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Flawed Breath Testing Program in Michigan

Jason Korner — Tue, 14 Jan 2020 19:29:39 +0000

Michigan Police Suspend Breath Testing Contract

The Michigan State Police have discovered a flaw in the breath testing program used in DWI investigations in the state. The Michigan State Police sent a letter to other police departments and prosecutor’s offices throughout Michigan to inform them there is an issue with the breath test program. Unfortunately, the letter did not specify the flaws with the breath testing program, but it did state the contract with the breath testing company has been suspended due to the flaws.

Types of Breath Test Problems

Many people look at a breath test machine as perfect and beyond fault, but that often is the furthest thing from the truth. There are three main areas where breath testing can be flawed. First, like the current situation in Michigan, the breath testing systems can be flawed as a whole due to fundamental issues with the machines or with the processes needed to obtain a breath sample. Second, breath testing can also deal with flaws within the individual breath testing machines if the machine is not calibrated or maintained properly, or just has an unknown problem. Finally, there can be flaws in the process that law enforcement uses to obtain a breath sample. Simply put, there are many possible defenses to breath tests available, especially when an experienced DWI lawyer is involved.

Any problem with one of the three above potential flaws would cause the breath test reading to be erroneous. Once a breath test result is erroneous, it needs to be thrown out of court altogether because the legal foundations used to obtain the number are faulty and cannot be relied on in a court of law. Breath test machines are like any other piece of technology, and anyone who has used a copy machine at work or dealt with a slightly outdated computer knows, there are plenty of potential problems when dealing with technology.

What If the Breath Test Result is Thrown Out?

If there is a problem with the breath test and the results are not allowed in court, it does not necessary end a DWI prosecution. The prosecutor still may be able to prove the case through other evidence, such as video of a person acting intoxicated or possibly even admitting to drinking “eight to ten beers.” That being said, it is a fundamental blow to the prosecutor’s case anytime the breath test result is disallowed in court.

St. Louis DWI Lawyer Jason Korner

If you or a someone you know has been arrested for a DWI, whether there was a breath test or not, please contact St. Louis DWI lawyer Jason Korner at 314-409-2659, or click here to fill out the contact form and Mr. Korner’s office will contact you.

Source: The Detroit News, Michigan State Police finds flaw in breath alcohol testing, suspends contract,” January 13, 2020, https://www.detroitnews.com/story/news/local/michigan/2020/01/11/michigan-state-police-breath-alcohol-testing-devices-performance-issues/4444435002

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2,200 DWI Cases Impacted by Crime Lab Errors

Jason Korner — Mon, 06 Jan 2014 17:21:31 +0000

By Jason Korner of The Law Office of Jason A. Korner posted in DWI / Drunk Driving Charges on Monday, January 6, 2014.

Prosecutors have admitted errors in blood alcohol test results in 2,200 DWI investigations. The crime lab errors occurred at a lab in Orange County, California. The lab error was caused by a calibration problem in a machine used to test blood alcohol samples. The calibration error will affect well over a thousand samples, including samples that may result in a higher blood alcohol content when retested on a properly calibrated machine. The lab errors are so worrisome that local authorities have asked the State Health Department to review the lab’s standards and procedures.

Lack of Confidence in Blood Alcohol Content

Many people associated with a DUI case are always concerned with what a person’s blood alcohol content was at the time of the arrest. Lab problems like these in California are always a concern because for every lab problem that is discovered there is the possibility that many more problems are not discovered. Police and prosecutors always like to harp on a blood alcohol test as if those tests are perfect and infallible, but lab problems do exist that affect the accuracy of the blood alcohol tests. Unfortunately, too many people, including prosecutors, give more credit to the blood alcohol test than the observations of the suspect or the results of the field sobriety tests. When the results of field sobriety tests do not support the result of a blood alcohol test, it may be an indication that the blood alcohol test is inaccurate.

Standards for Scientific Evidence

Many courts almost automatically admit breath or blood test evidence. Given these current lab problems, judges should begin to take a more critical look at the foundation for these chemical tests prior to their admission into evidence. If the tests cannot meet the scientific standards, then they should not be admitted into evidence. Further, defense attorneys should vigorously attack the flaws inherent with these chemical tests at trial. These tests are not perfect and it is the job of skilled defense attorneys to illustrate that point for judges and juries.

If you have been arrested for DWI and took a breath test in Missouri, please read about the problems with Missouri’s breath test system. It is important that you call DWI attorney Jason Korner at (314) 409-2659 so he can help you preserve your rights and challenge any pending driver’s license suspension.

Source: Los Angeles Times, “O.C. Crime Lab finds more errors in DUI testing,” Richard Winton, November 22, 2013.

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One DWI, Two Very Different Breath Tests

Jason Korner — Wed, 09 Oct 2013 16:34:32 +0000

By Jason Korner of The Law Office of Jason A. Korner posted in DWI / Drunk Driving Charges on Wednesday, October 9, 2013.

“The Officer Had Me Blow Twice in My DWI Case”

Frequently during new client consultations for DWI cases I hear, “They had me blow twice.” Usually this means the police officer administered a preliminary breath test at the scene, prior to placing my client under arrest, then administered an evidentiary breath tests once back at the station. There are times when no preliminary breath test is given, and other times when the evidentiary breath test takes place at the scene after the arrest. However, during most DWI investigations a preliminary breath test is given after the field sobriety tests, but prior arrest, and the evidentiary breath test is administered about 30 minutes after the person arrives at the police station.

What is the Difference Between the Two Breath Tests?

Preliminary Breath Tests – The preliminary breath test is a small, handheld device that police officers generally use at the scene of a DWI investigation. The test does result in a blood alcohol content read out, but these preliminary, or portable, breath tests do not have the same safeguards or standards that the evidentiary breath tests require. For example, the preliminary breath tests do not have to be calibrated … ever … under Missouri law. There is also no way to detect mouth alcohol, which can skew the results of the test dramatically. Due to these shortcomings, the results of a preliminary breath test can only be used in court to show whether there was a presence of alcohol on a person’s breath. The actual blood alcohol content cannot be entered into evidence in court, unless it is below the legal.

Evidentiary Breath Tests – The evidentiary breath test is generally administered at the station, but there is a new evidentiary breath test machine that is portable. Either way, the evidentiary breath test must be administered after the arrest. The term “evidentiary breath test” is used to describe a breath test that can be used as evidence of a person’s blood alcohol content in court. These machines are significantly better than the preliminary breath tests, but still have many shortcomings themselves. Here are some of the problems with Missouri breath tests.

If you have been asked to take a breath test there are many possible Breath Test Defenses available. Please contact The Law Office of Jason A. Korner to discuss your rights and options when facing breath test evidence.

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