Challenging The Breathalyzer
These Breathalyzers have been around for many years, and the prosecutors have experts ready to testify to their reliability.
The Breathalyzer and their reliability, how well they work, and how well the expert can explain them are crucial to the prosecution's case for a DUI in Los Angeles County.
If you want to win your DUI, if you can attack the Breathalyzer effectively, your DUI attorney can do that, then you're going to be in a real strong position.
When we attack the Breathalyzer, we will attack it with the calibration records being checked.
We're going to use an expert to attack the Breathalyzer test. We will try to do everything that we can to show that it's not reliable. In this particular case, the client should not be found guilty of a DUI because of the inaccuracy and unreliability of the Breathalyzer in Los Angeles County.
In general, just making this argument in every DUI case will not work. Time and time again, the prosecutors have taken people out for DUIs in our courthouses across Los Angeles County.
So, you're going to have to have some angle as an attorney or defendant in a DUI case. In other words, there will have to be some problem with the Breathalyzer machine used in your particular case.
Sometimes they are taken out of service because they are not working correctly. Periodically they are not appropriately calibrated. A reasonable DUI attorney should be able to check this out, especially if things look suspicious about your Breathalyzer.
For example, if it says that you blew really, really high and only had a couple of drinks, that wouldn't make sense in most cases. So, testing the reliability and the accuracy of a Breathalyzer related to a DUI is crucial in defending these particular cases.
Is There An Error Rate On The Breathalyzer Machines?
First and foremost, a lot of times, the first Breathalyzer used in Los Angeles County is the PAS device – Preliminary Alcohol Screening Device. This device is not very accurate. There have been problems with their accuracy, and breathalyzers fail the legitimacy test. Experts can testify to this.
So, if they only have a PAS device test against you in a DUI case, you're looking pretty good because these tests can be attacked very viciously, and a lot of times, issues can be dismissed.
Now the prosecutors and police know this, so usually, after they do the PAS device, if your blood alcohol level is a .08 or greater, or close to the .08, they're then going to take you to the police station test you on the more sophisticated machine.
This machine at the police station, even though it's more accurate than the PAS device, also has an error rate of .02. Even the prosecutor's witnesses will admit that this Breathalyzer machine is not entirely accurate, and that's where you can start to get the leverage and the angle to attack the prosecutor's case and either negotiate a lesser charge or get the case dismissed entirely.
The bottom line, though, is that you will need an expert when it comes to these Breathalyzer machines. You will need facts that substantiate a problem with the particular case. Then you're in a solid position to argue against the DUI case and either get a lesser charge or get the case dismissed altogether in front of a jury trial.
So, when I have an issue with the Breathalyzer, there's not an issue every time.
Sometimes based on the circumstances of the case, the driving, how the person was acting, walking, talking, and how many drinks they said they had, we know that the Breathalyzer was accurate enough to test their blood alcohol level.
Also, if someone tells me that they had like eight drinks and they're double the legal limit, you can try to attack the Breathalyzer machine. Still, you're not going to likely have success if the police can prove that the person was very intoxicated.
Don't forget now; they have body cam evidence. They have dashcam evidence. So, if people are claiming, yeah, I'm fine, there's a problem with the Breathalyzer, and they're staggering around or can't pass the tests that are being video recorded. The Breathalyzer argument is not going to help you.
Blood Alcohol Level
Usually, I see the Breathalyzer argument coming into play in a DUI case when it's a close blood-alcohol level or when there are problems. For example, someone blows a .08 and blows a .13. That would be a huge problem, and the prosecutors would know we've got a problem.
That machine is not calibrating accurately. The two tests that they do have to be within .02. They do two tests typically. Sometimes they'll do three when it comes to a DUI and the Breathalyzer machine, but most of the time, they're going to do two tests to get a couple of readings to be able to argue.
If they can even drop in a couple of PAS device readings the same as the Breathalyzer at the police station, they're in a much stronger position to argue that they've got the right blood alcohol level related to your DUI case.
Now there are some exceptions to what I'm saying here. Ventura County will try to use the machine in the car. They don't even take you back to their police station to check your breath.
So, there are counties that do things the way they want. As liberal as some people say California is political, it is one of the most conservative and harsh states in the nation regarding DUIs. Santa Barbara, Ventura, Orange County – they don't mess around.
We're often talking about jail time for a first offense, whereas in Los Angeles County, in my experience doing this twenty-five year.
On a first-time DUI, as long as you don't have any of the crazy factors – like going over a hundred miles an hour or getting into a horrible accident, weaving in and out of traffic, doing dangerous behavior, hurting somebody – as long as you're not in that position on a first offense, you're usually not going to get any jail time if you have a reasonable attorney who knows how to handle a DUI case the right way.
The only way to find out what you're looking at is to come in for a free consultation. Sit down, be honest, go over everything, and then an attorney like me will be able to give you a pretty good feel for what you're looking at, what you're facing, and what I can do to help you.