breath test 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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I’ve Been Pulled Over and Been Drinking … Now What?

Jason Korner — Mon, 19 Nov 2018 21:52:57 +0000

Useful Information About DWI Investigations

For many people there is no scarier situation than to be pulled over by the police after having some drinks. Whether its one or two drinks at a work happy hour, three or four drinks at a Christmas Party, or several drinks after a long night, fear and anxiety are unavoidable when dealing with the police. The first thing you must think about is context. Police already expect people to be drinking substantially more than usual this time of year because of the holidays. Starting with the night before Thanksgiving and going through New Years, the consumption of alcohol increases significantly this time of year. Also, the later into the night you are pulled over, the more likely a police officer will think you have been drinking, and that you have had too much to drink.

Why Were You Pulled Over?

Second, it is important to be aware of the reason you were probably pulled over by the police. If you were pulled over for expired plates or speeding then the police officer may not think you have been drinking. If you were pulled over for leaving your lane or not obeying street signs, then there is a higher likelihood the police officer already believes you are intoxicated. This is very important because people are very accustomed to texting and driving, playing with the radio, and reaching for something that has fallen, which can all cause you to leave your lane. Even if you left your lane for one of these reasons the police will think it is because you are drunk.

“Have You Been Drinking This Evening?”

Once you are pulled over and the police officer arrives at your car to speak with you he is going to get around to asking the million-dollar question, “have you been drinking this evening?” Here is what I can tell you about what a police officer thinks about your possible answer to this question: if you tell him yes then he will believe you, but when you tell him how much you have had he will not believe you. If you say you have been drinking then you will be asked to step out of the car for further investigation, regardless of how little you say you drank. At this point the officer believes you are intoxicated unless you prove to him that you are not. If you say that you have not had anything to drink, now it puts pressure on the police officer to determine if he is going to ask you to step out of the car and begin a DWI investigation. Once you have been pulled over after having anything to drink, the number one way to not get arrested is if you are never asked to step out of your vehicle.

Field Sobriety Tests

The most important thing to know about field sobriety tests is they are more complicated than they appear. You may be able to walk a straight line and stand on one leg, but can you follow each and every instruction from the police officer while doing so? The officer is looking at whether you can balance, but he is also very interested in your ability to follow all of his instructions. The field tests are very technical, and if not performed specifically as instructed then you will be deemed to have failed the tests even if your balance was perfect. It surprises many people to know that you do not have to do the field sobriety tests. They are voluntary tests, regardless of how the police officer makes it sounds. That being said, if you refuse the field tests you should expect to be arrested for DWI. If you are drunk and know you will not do well on the tests, then it is a good idea to refuse the tests and limit the amount of evidence the police officer has against you. There are three main field sobriety tests that are administered during DWI investigations: the Horizontal Gaze Nystagmus (HGN) Test, the Walk and Turn Test, and the One Leg Stand Test. The HGN test checks for involuntary jerking of your eyeballs to determine if you are intoxicated. The Walk and Turn and One Leg Stand test are more traditional balance and follow instruction tests.

Breath Test or Refusal

After the field sobriety tests, if you have not done well the police officer will place you under arrest. Either at that time or back at the station the officer will ask if you will submit to a breath test. He will explain that if you refuse your license will be automatically suspended for one year, which is simply not true. There are no automatics when it comes to the law, there is review for nearly everything. Breath test refusals are no exception. Whether you take a breath test and blow over the legal limit, or if you refuse the breath test you have the right to challenge the resulting driver’s license suspension. In many first offense cases, it is in your best interest to refuse because you may have more options available to you. If you have multiple DWI’s than it may be in your best interest to refuse because there is no evidence of your specific blood alcohol content. Although a police officer can request a search warrant and draw your blood, this does not happen often, and almost never for a first time offender.

St. Louis DWI Lawyer Jason Korner

If you or a loved one gets pulled over for a DWI this holiday season, please contact Jason Korner so he can answer all of your questions and explain the upcoming court process. You can speak with Mr. Korner by calling 314-409-2659 or by clicking here and filling out the contact form.

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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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Pennsylvania Breath Test Ruling Calls Into Question Missouri DWI Procedures

Jason Korner — Wed, 03 Apr 2013 17:41:28 +0000

By The Law Office of Jason A. Korner of The Law Office of Jason A. Korner posted in DWI / Drunk Driving Charges on Wednesday, April 3, 2013.

A DWI attorney in Pennsylvania recently challenged the value of breath test evidence for DWI cases in the State of Pennsylvania in Commonwealth v. Schildt. The judge hearing the case ruled that no breath test result below a 0.05% or above a 0.15% was valid given the testing procedures for Pennsylvania. There are several important issues that arise from this ruling for DWI cases in the St. Louis area and for Missouri cases in general. First, the breath testing program in Pennsylvania is more sophisticated, and includes better safeguards against error than the testing system currently used in Missouri. Sadly, in a Missouri DWI case only one breath sample is required from the suspect. As many as 45 other states, including Pennsylvania require duplicate testing. In states that use duplicate testing a suspect blows into the breath test, waits 10 or so minutes then takes a second breath test. The two breath test samples are then compared to ensure they are within a relevant range. If the two tests are not within the relevant range, then both samples must be thrown out because there is no way of knowing which sample was contaminated or inaccurate. Unfortunately, Missouri does not utilize this most basic fail safe against erroneous breath test results.

In a Missouri DWI case the breath test machine is required to be calibrated every 35 days. The breath test machines are calibrated only with a solution that should yield a result either 0.04% or 0.10% depending on the solution used. Most breath test machines in St. Louis DWI cases are calibrated with the 0.10% solution. Once again, there are deficiencies in this system when compared to the Pennsylvania breath testing system which tests three different alcohol level solutions during each calibration. It should be a bright red flag to all experienced DWI lawyers in Missouri that a breath testing system much more advanced than our own has been held inaccurate for evidentiary value.

The lesson that must be taken from the excellent work of Justin McShane in Pennsylvania is that breath test results are not an unimpeachable fact. Breath tests results in DWI cases must be challenged, especially in a state like Missouri where there are very minimal standards for administering a breath test. With all of the legal and financial penalties that people have riding on a possible DWI conviction, it is more important than ever that experienced DWI attorneys analyze and fight not only the results of individual breath tests but the Missouri breath testing system as a whole. The State of Missouri can continue to advocate a tough on DWI approach, but that approach will ring hollow as long as there is a scientifically unacceptable breath testing system in the state.

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