Before a breath test is taken, a motorist will be placed under arrest. That usually requires them to be handcuffed, placed into a police patrol car and taken to a police station that has a breath test device.
Under Pennsylvania law, there is supposed to be a 20-minute deprivation period. That means that a police officer is supposed to observe the motorist for at least 20 minutes to make sure that they don't eat anything, drink anything or put anything into their mouth. Once that happens, the person operating the breath test device will walk the motorist up to the machine and explain what it is and how they are supposed to use it. Typically, that explanation is very vague. They'll just say, “Keep blowing until you hear a sound,” and they literally tell the person to blow over and over again until a sample is obtained. Pennsylvania law requires that police obtain two breath test samples.
Sometimes people think that they can beat the machine. It's best to just give a sample because the device doesn't actually measure the blood alcohol in a person's system. There is a conversion that's used. So, there is a great deal of inaccuracy in the testing process and many things can go wrong and affect the test. For example, if somebody has acid reflux, the alcohol can essentially be burped up, and the machine can pick that up. That would cause a false reading. The police will tell you that the machines are set up to prevent those things from happening, but that's not necessarily true.
There is a set of state mandated, as well as factory required, breath testing procedures and protocols that have to be followed, but often police departments don't follow them. There is a maintenance schedule, a logbook, and many requirements that the police may not follow. The motorist will never know this unless they have an attorney who is willing to go out and get that information. Their lawyer needs to be willing to learn and understand how the breath test machines work so they can use that information to benefit the client.
False readings can result from a malfunctioning machine or a medical issue that the motorist is facing. So, motorists have to be forthright with their attorney and tell them all of the medical issues they are having. Many medical issues can affect the reading of the machine. There are very good experts all around the country who can come to court on your behalf and get the materials prepared by the police department, review them, and show all types of potential errors that took place during the testing process.
What Are Some Other Errors Involved In The Breath Testing Process?
Certain errors just aren't accounted for in reaching the estimate of the blood alcohol content. For example, a person's body temperature, breathing pattern, vomiting or belching within 20 minutes of the test, dental conditions and medical conditions are all factors that can have a huge impact on the breath test reading. The machine can't always determine the difference between alcohol from a person's breath and alcohol that's actually stored in the mouth. A respiratory issue like bronchitis can affect the machine's result.
Things that unintentionally introduce alcohol into a person's system, like cough medicine and various other things can play a role. Even some sodas have introduced alcohol into the body.
The breath test device is premised upon someone having a breath to blood ratio, and it fails to consider the difference between a male and a female. That can create a huge difference. Many variables are involved in breath testing. You have to determine if the machine was properly calibrated and maintained.
It is critical to determine whether the officer followed the proper testing and training protocols. In Pennsylvania, two breath tests are required, so the police have to get two complete samples. You need an experienced DUI defense attorney with the background, schooling, and knowledge of breath testing so that these issues can be explored for a full and complete defense.
Why Is the Observation Period So Important In A Breath Test Scenario?
The observation period is important because law enforcement must take measures to make sure that no alcohol is introduced into the body during that 20-minute period. The premise of the observation period is that the alcohol will be going through a person's system and has already been digested. If a person hiccups, has acid reflux or has a dental issue that traps alcohol in their mouth, then a falsely elevated blood alcohol content reading can result.
What Evidence Do You Use to Challenge Breath Test Results?
As the attorney, I want to get the manual for how the particular machine operates. I want the breath testing logs for the machine, the maintenance information and the calibration information. I want all of the information that goes into the daily operation of the machine. I also want a thorough medical history from the client. A review of that information with a trained eye can lead to a lot of defenses.
What You Can Do?
Motorists sometimes think that the results must be accurate because it's a machine. But these machines are fraught with error, and if a knowledgeable attorney goes out and actually tracks down the information relating to the machine, then there are defenses that can be made. A person may not be impaired, yet the machine says that they are. At Mike Sherman Law, we will go out and find the truth. Based on our extensive background in the science, medicine, and forensic aspects involved in DUI breath test cases, we see what other lawyers don't!
For more information on breath testing in Pennsylvania, a free strategy session is your next best step. Get the information and legal answers you are seeking by calling PA DUI lawyer Mike Sherman today at (412) 471-5000.
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