High Breathalyzer Reading | Charlotte DWI Attorney

high breathalyzer readingA high breathalyzer reading in a DWI case is often viewed as conclusive evidence of guilt. However, breath testing “science” is not really science at all. Despite all of the hype by “breathalyzer” manufacturers, the end “result” is just an “educated guess” of what a person’s blood alcohol concentration (BAC) level is. Some models uses infrared testing which supposedly can measure excited alcohol molecules. Other units employ a mystery liquid solution that they claim can calculate alcohol percentages in exhaled breath.

All breath testing machines use a computer algorithm that assumes a 2100:1 ratio (2100 milliliters of breath should be roughly equivalent to 1 milliliter of blood) and gives a reading of some degree of one-one hundred. Of course, physiology confirms that each of us is unique. Body weight, body mass, tidal volume, alveolar volume, body temperature, room temperature, cellular phone signals, police radio interference can all affect the ultimate measurement outcome. And to suggest that this “instrument” which consists of some plastic tubing, a computer chip, and a keyboard is remotely accurate to one-one hundredth of anything is specious.

New and Improved Breathalyzer Machines

Nevertheless, these ever changing models of “new and improved” breathalyzers are bought in bulk and accepted without serious inquiry by the government. Their readings are then offered to judges and juries without serious inquiry or qualifying disclaimers, at least until challenged by DWI defense attorneys. When asked about the accuracy of breathalyzer testing in general and readings specifically, virtually all testifying police officers are emphatic in their universal endorsement. In fact, when asked about the fallibility of any man-made machine or “margins of error,” it is offered that the machine runs “its own diagnostics” and will indicate when it is not operating properly?! Regardless of your perspective, Charlotte DWI arrests are almost always based on these BAC readings whether they are reliable or not.

Low Breathalyzer Reading Strategy

When a client reports submitting to breath testing and getting a reported reading of between 0.08% and 0.10%, Charlotte DWI lawyers will often agree that such cases are very defensible. The defense strategy includes a discussion of standard “margins of error” in breathalyzer equipment in conjunction with any significant delay in testing between the time stopped and time tested. BAC is a fluctuating variable. The exact figure depends on type of alcohol consumed, when ingested, the presence of food in the stomach, body weight, body temperature, and certain gastric issues. Contrary to urban legend, tolerance to alcohol does not affect BAC. It takes time for alcohol to be absorbed into a person’s bloodstream. The exact time required and amount of alcohol absorbed varies in each individual.

In general, BAC reaches its maximum level in approximately 90 minutes after you stop drinking. So, if an individual “tests” at 0.08% to 0.10% approximately an hour to an hour and a half after being stopped, an experienced Charlotte DWI attorney will argue that the BAC at the time of stop (when they were actually driving) could be significantly below the “presumptive limit” of 0.08%. Therefore, the person should be found “not guilty.” The State will retort with their “materially and appreciably impaired” playbook which may be persuasive if the driver was pulled over for unsafe driving or following an accident. But what about routine “DUI checkpoint” cases? The answer will depend on the individual facts of each case. That’s why there are no “hard and fast” rules in DWI cases.

High Breathalyzer Reading Strategy

Here is where DWI lawyers will differ. Many Charlotte DUI attorneys understandably fear a high BAC level. Readings in excess of 0.20% are almost three times the “legal limit” and are obviously a hurdle to overcome. Here’s how you can do it in certain cases. Gastric reflux, dental appliances (braces and partials), and even some medical conditions can result in a falsely high reading. If the reading is truly at these levels, you can and should expect to see physiologic responses like slurred speech, swaying, staggering, falling, even vomiting or worse. With more use of video, jurors are able to see for themselves what the officer encountered on the side of the road after stopping the vehicle. If they don’t see these common reactions to high BAC levels, they will discount or even refuse to consider the “machine” reading and determine guilt or innocence on their effective real-time observations.

That’s why Charlotte DWI attorney Aaron Lee actually prefers exceptionally high breathalyzer readings. His highest BAC level to date is 0.31%. A person with this level should be unconscious from alcohol poisoning. This would be a medical emergency situation if accurate, but the mugshot photo showed a person who looked annoyed but not drunk. Another memorable case involved a young college graduate whose reported BAC level was 0.22%. There was ample video at the street and in the police car on the way to the station. The video showed no slurred speech, no swaying, and clear, coherent questions and answers throughout the recorded encounter. The jury rejected the high breathalyzer reading and found him to be not guilty because the video showed a completely sober individual. Juries will always trust their own eyes and ears against any offered machine printout.

Critical Video Evidence

Lately, there has been a national debate about the importance of video in police interactions. In South Carolina, the legislature has mandated video equipment in all police vehicles and specifically requires certain actions in DUI cases. This law was not designed to protect “drunk drivers” but rather to protect officers from being shot and the State from being sued frivolously. Prosecutors do not like this law and often complain that the video requirement makes it “too easy” to defeat DUI charges. I disagree. Video is almost always the “make or break” evidence in any DUI case. Video negates the “he said, she said” aspect of officer versus citizen.

In reality, as I point out to juries in opening statements, what the officer says today really does not matter. And further, my client will not be testifying because nothing they say today really matters. What the judge says always matters (insert pandering here). Because of full video at the street from the police stop to field sobriety testing to arrest and then full video during breath testing, the jury can now “judge for themselves” whether the person charged was truly impaired or not. Prosecutors and DUI defense lawyers will do their jobs and highlight those portions of the video that tend to support their case. But in the end, the jury is actually empowered to be the “fact finders” of truth. Legislators are naturally hesitant to introduce any bill that can be depicted as helping “drunk drivers.” But perhaps now, with the current interest in documenting police actions, we should move forward with video in the DWI arena.