I Failed a Breath Test. Can I Still Win My Oregon DUII Case?
As an Oregon DUII lawyer, one of the most frequently asked questions is whether failing a breath test by blowing over the legal limit of .08% automatically means you are guilty of an Oregon DUII. First of all, nothing ever means an automatic guilty verdict. In an Oregon DUII case, the burden is always on the State of Oregon to prove beyond a reasonable doubt that you were impaired while you were driving or that you had a blood alcohol level over .08% at the time you were driving. Failing a breath test is hard to overcome but it is not impossible.
Breath Test Machines Incorrectly Assume Everybody is The Same.
It is important to understand that a breath test machine, like the Intoxilyzer 8000 used in Oregon DUII cases, takes direct measurements of alcohol on your breath; not your blood. The Intoxilyzer uses the information about alchohol on your breath to estimate the concentration of alcohol in your blood. The way the breath test machine makes these calculations is by assuming that every person has the same physiology. The machine assumes that any person who has a certain amount of alchohol on the breath will have a certain amount of alchohol in his blood stream. But some of the assumptions the Intoxilyzer makes are simply incorrect.
For example, imagine you are trying to estimate how many coins are inside a big jar. You can't see inside the jar to see what kind of coins that the jar holds. However, you get to weigh the jar before you estimate how many coins are inside. The jar weighs five pounds. You know that five pounds of dimes is about 1000 dimes, so you estimate that the jar holds 1000 coins. What's wrong with this methodology? It assumes that all the coins are dimes and fails to take into account that the jar may contain quarters, pennies, or nickels. Breath test machines like the Intoxilyzer 8000 make a similar mistake when estimating the alchohol content in an individual's blood stream based on the alchohol content of that person's breath. If the jar is your blood stream, and the coins are the quantity of alchohol in the blood stream, the Intoxilyzer assumes the jar is filled with dimes. This is an oversimplication of some complicated science, but you get the picture: breath tests can be inaccruate because the machines assume everybody is the same when in actuality everybody is different.
Of course, it is much easier to overcome a breath test failure of .09% than it is a failure of .27%. However, there are things your DUI lawyer can do to challenge the accuracy of breath test results, and convince the jury that they should not trust the results as hard evidence of intoxication at the time of driving.
Rising Blood Alcohol
The most important thing to understand about your Oregon DUII is that the prosecution must prove at least one of the following beyond a reasonable doubt: (1) you were impaired while you were driving; or (2) you had a BAC over .08% at the time you were driving, not at the time you took the breath test. If the evidence of actual impairment is scant, then the prosecutor will likely rely on the results of your breath test to convict you of DUI. The prosecution will usually argue that your BAC was actually higher when you were driving than it was when you took the breath test. But this is not always true. After you stop drinking, alcohol continues to absorb into your system. On average, your body continues to absorb alcohol for about 50 minutes after your last drink. However, depending on the individual, the drinking pattern, and whether food was ingested, the absorption period can vary from between an half hour to as long as three hours. This means that predicting the exact point of peak absorption is very difficult. Nonetheless, during the absorptive phase, your blood alcohol levels continue to rise. So, if you took a breath test while your body was still absorbing alcohol, your BAC was lower at the time you were actually driving. The graph below demonstrates what a BAC curve might look like based on maximum absorption in one hour.
Sources of Error
The Intoxilyzer is a machine, and machines are not infallible. All kind of things can affect the accuracy of breath test results. Even eating bread has caused false positives for alcohol in some subjects! Any of the following could possibly skew breath test results:
1. Snuff or chewing tobacco
2. Chemicals from inhalers used by asthma patients
5. Exposure to paint, glue, lacquer or solvents
6. Acid Reflux
7. Used mouthpieces on the breath test machine
Just like any scientific instrument, if the operator doesn't use it correctly, it won't generate accurate results. Under Oregon law, the officer that operates the Intoxilyzer must be certified to operate the machine. The intoxilyzer itself must have been certified within 90 days prior to the breath test. Also, things like belching, acid reflux, and minor regurgitation can seriously affect the results of a breath test. Therefore, the officer that administers the breath test is requires to observe the person to be tested for at least fifteen minutes prior to the test. The operator must be certain that the subject has not taken anything by mouth, i.e. no drinking, smoking, eating, or taking medication. Your Oregon DUI lawyer can review your case to make absolutely sure all the proper protocol was followed. If it wasn't, this may be grounds for the court to throw the breath test results out.
Motions to Suppress: Keeping the results of the breath test out of evidence
Even if you you don't have grounds to challenge the accuracy of the breath test results, your Oregon DUI lawyer may be able to keep the results of the breath test out altogether. For example, if the police didn't have any reason to stop you in the first place, or if the police unlawfully extended the scope of the stop, your lawyer can file a Motion to Suppress and ask the judge to throw the breath test results out. Also, under Oregon law, you have the right to talk to a lawyer before taking a breath test. If you asked to speak with a lawyer prior to taking a breath test, and the police did not give you a reasonable opportunity to consult privately with an attorney over the phone, this is also grounds to get the breath test excluded from evidence.
If you have been charged with an Oregon DUII, call the law firm of Castleberry & Elison RIGHT NOW to speak with an Oregon DUI Lawyer. Initial consultations are always free.