These Breathalyzers have been around for many years and the prosecutors have experts that are ready to testify to their reliability.
The Breathalyzer and their reliability and how well they work and how well the expert can explain them is crucial to the prosecution's case when it comes to a DUI in Los Angeles County.
Challenging The Breathalyzer
If you want to be able 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're going to attack it with the calibration records being checked.
We're going to use an expert to be able to attack the Breathalyzer test and we're going to try to do everything that we can in order to show that it's not reliable and that, in this particular case, that 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, to just make this argument in every DUI case is not going to work. The prosecutors, time and time again, have taken people out for DUI's in our courthouses across Los Angeles County.
So, you're going to have to have some sort of an angle as an attorney or as a defendant in a DUI case. In other words, there is going to have to be some sort of a problem with the Breathalyzer machine that was used in your particular case.
Sometimes they are taken out of service because they are not working properly. Sometimes they are not calibrated properly.
A good DUI attorney should be able to check this out, especially if things look suspicious in reference to your Breathalyzer.
For example, if it says that you blew really, really high and you only had a couple of drinks that certainly wouldn't make sense in most cases. So, testing the reliability and the accuracy of a Breathalyzer related to a DUI is crucial in trying to defend these particular cases.
Is There An Error Rate On The Breathalyzer Machines?
First and foremost, a lot of times the first Breathalyzer that is used in Los Angeles County is what's called 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 cases can be dismissed.
Now the prosecutors and police know this, so usually after they do the PAS device, if you're blood alcohol level is a .08 or greater, or close to the .08, they're then going to take you to the police station and 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 a .02.
Even the prosecutor's own witnesses are going to admit that this Breathalyzer machine is not completely accurate and that's where you can start to get the leverage and the angle to be able to attack the prosecutor's case and either negotiate a lesser charge or get the case dismissed completely.
The bottom line though, when it comes to these Breathalyzer machines, you're going to need an expert and you're going to need facts that substantiate that there is a problem with the particular case, and then you're in a strong position to be able 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 – and 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 say they had, we know that the Breathalyzer was accurate enough to be able to test their blood alcohol level.
Also, if someone tells me that had like eight drinks and they're double the legal limit, then obviously you can try to attack the Breathalyzer machine, but 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 dash cam 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, obviously, the Breathalyzer argument is not going to help you.
Blood Alcohol Level
Usually, where I see the Breathalyzer argument coming into play in a DUI case is when it's a close blood alcohol level or when there are problems. For example, someone blows a .08 and then they blow a .13. That would be a huge problem and the prosecutors would know – uh oh, 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, so they can get a couple of readings to be able to argue.
If they can even drop in a couple of PAS device readings that are 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 just 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's counties that just do things the way they want. As liberal as some people say California is politically, when it comes to DUI's, I would say it is one of the most conservative and harsh states in the nation. Santa Barbara, Ventura, Orange County – they don't mess around.
A lot of times we're talking about jail time for first offense, whereas, in Los Angeles County in my experience doing this twenty-five years.
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 good 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 is going to 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.