Seattle DUI Attorney, Nate Webb, discusses the common question: "How can I beat the breath test?"

Seattle DUI Attorney, Nate Webb, answers the question: "How can I beat the breath test?"

Quite frequently when I am at a dinner party or some other function and disclose that I am a DUI attorney, I'm inevitably asked the question, "what do I do if I get stopped" which then turns into "how can I beat the breath test?"  Well, the smart alec answer is "don't drink and drive" and of course that is true, but what about the person who has consumed alcoholic beverages responsibly and is now faced with a breath test?

Well, that person knows in their mind they don't feel affected or impaired but have no idea how this machine measures breath.  There are known variances which automatically raise your level which I've previously blogged about but here is another tip for those concerned with being near the per se ("legal limit") threshold of .08 and blowing over after drinking.

TIP: When you are taking a breath test, the machine (DataMaster) will record a proper sample at approximately 5 seconds and most assuredly at 8 seconds so your best bet is to blow only for that period.  The officer or trooper will coach you and demand you blow much longer, but that minimum is all that is necessary for the machine to record a result.  The reason this is important is because there is much research which indicates that the longer you blow the higher your result will be.  Troopers regularly testify that when you blow longer it just records a "more accurate" sample but the truth is the longer you blow the "higher" your result, not more accurate.  Law enforcement is trained on this concept and typically demand a 20 second or longer blow from a subject thereby increasing the sample.  Meeting this minimum level will be recorded in the online database and probably won't make the officer happy due to their training to get you to blow longer, but the fact is if you submitted a proper blow and it was recorded, you complied with the request.  Also, the result will be much lower than if you actually blow 20 seconds or more.  

Some people will say that you should suck on a penny or some other object to skew the results, but I have not ever found that to be an accurate or advisable method.

A seasoned Seattle DUI Lawyer will know how to challenge the results provided and present the known variances and presumptions in breath testing when a jury trial occurs, but this is just one tip.

Also, if you did submit to a breath test, always, I repeat, always ask for an independent blood draw.  You cannot be denied that opportunity.  If it was denied because you were booked into jail then the breath test results should be suppressed by the court.

If you or someone you know has been arrested for DUI, call today for immediate assistance from one of the "Top Attorneys" in Washington State for DUI Defense and Super Lawyer Rising Star and Superb rated DUI attorney (Avvo.com).  Hundreds upon hundreds of satisfied DUI clients.

Call today (425) 398-4323 or visit our site: www.webbattorney.com

Uncertainty in Breath Testing - BAC Datamaster and Datamaster CDM

I'm no scientist, let's get that out of the way right off the bat, but I do have a basic understanding of breath testing principles utilized in garnering results with a BAC Datamaster and Datamaster CDM.  Both of these "instruments' (or as I say, machines) are approved for the quantitative measurement of alcohol in a person's breath.  See WAC 448-16-020.  Essentially, the State Toxicologist has approved these machines for use in testing person's breath alcohol concentration when arrested for an alcohol related driving offense in Washington State.

Breath testing for evidentiary purposes in Washington consists of an operator collecting two separate samples of breath independently from an arrested subject.  The operator (usually the arresting law enforcement officer) enters some basic information into the machine, such as date of birth of the subject, etc. then just waits 15 minutes or more and has someone blow into the tube attached.  Each time a DUI subject blows the operator is to ensure a new mouthpiece is used.  After the samples are collected, if everything went right, meaning there were no errors for an invalid sample, samples outside of 10% of the mean, ambient air, radio frequency interference, etc., it will produce a ticket showing two subject samples, that is the two numbers related to the persons breath alcohol concentration.  The State of Washington's legislature has made it very simple for prosecutor's to admit these samples (two numbers on the ticket) into evidence and present to a jury.  Literally an elementary student could ask the breath test technician the necessary questions for admissibility, I'm not kidding.

Once the prosecution ends its' direct of the technician, this is where a trained DUI defense attorney needs to pounce.  As an experienced Seattle DUI attorney I have cross examined breath test technicians on many many occasions when challenging the results of a breath test document.  The prosecutor's job is done once they get the number in front of the jury, but the DUI defense attorney's is just beginning.  What do I mean by pounce, well you need to hammer home to the jury that the alleged numbers are really a probability fraught with uncertainty and the technician will have no choice but to admit the numbers are not perfect.  Any measured value has uncertainty, as I understand it, that is how science works!  No scientifically produced value is perfect and each measured "subject sample" could be much lower or much higher given uncertainty.  Why didn't the prosecutor ask the technician about that and disclose it to the jury?  Well, of course they want that precious numbered to be free from any speculation.  That is why it is absolutely necessary to discuss that with the technician on cross and to make sure and point out in summation that the prosecutor essentially hid that information from them.  

Once you discuss uncertainty, make sure and then discuss what a partition ratio is with the technician. The jury needs to know everything about how these measured values are based upon presumptions.  A partition ratio is, in layman's terms, an assumed value that it utilized to compare blood to breath.  The dumbed down version is this, the ratio assumes that 2100 mL of breath contains the same amount of alcohol as 1 mL of blood.  However, just by doing some minimal research on partition ratio's will reveal numerous treatises wherein scientists, medical students, doctors, etc. have concluded the 2100:1 value is incorrect and can have vast ranges, meaning that someone's measured breath test on a Datamaster presumes this 2100:1 value but if the partition ratio is actually lower or higher, as has been concluded by these treatises, the actual breath test result is vastly skewed.  Make sure you bring this out of technician and discuss the revelation to the jury.  Again, a great point to make in summation is "why didn't the prosecutor inform you of this presumption when they presented their case?"  It shows that the prosecutor doesn't want the jury to speculate on things that are clearly speculative!

One additional argument I commonly make is that the presumed temperature of the simulator is also based upon skewed conclusions.  The simulator solution is a mixture of ethyl alcohol and some type of distilled water to simulate a known value, e.g. .04, .08. 10 or .15.  The toxicology lab prepares a simulator solution to be approximately .08 for use in the datamaster.  The mixture is tested by several toxicologists an certified for use. The measured value also has an uncertainty and that should also be exposed to the jury, especially if the simulator solution is closer to the .072 to .088 ranges (that is the allowable range of a simulator solution for use with the datamaster).  The mixture, for use in the datamaster, must be heated to a known value and the common value is 34 degrees Celsius plus or minus .2.  In between a subject's sample, the simulator solution runs into the datamaster for an "external" check to make sure the datamaster is reading a .08 mixture (although if the reading is anywhere between .0-72 and .088 it is acceptable?  Really? Anyway, that is an argument for another day).  Why is that 34 degrees value important?  Well that is the presumed temperature of a person's mouth when exhaling.  Again, there are many treatises and experts who agree that 34 degrees is not the correct average temperature of every person, and technician's and toxicologists who testify in DUI trials must agree, there is too much proof to the contrary and science simply doesn't support we are all the same.  Here is where it is necessary for your DUI attorney to expose the speculative nature of breath testing.  If someone's mouth temperature is lower or higher, invariably the breath test measured on the datamaster will be either lower or higher.  Again, in summation it is essential your DUI attorney points out this non-disclosure of information to the jury. 

At the end of the day, a trained DUI defense attorney can show that these alleged measured values are fraught with speculation, yet when determining the guilt or innocence of a citizen the government has no problem with presumptions.  There are numerous other situations in which a trained Washington State DUI attorney can expose speculative breath tests results to a jury.  

If you find yourself in need of a renowned, trial tested DUI Defense attorney, look no further than the Webb Law Firm.  Call today (425) 398-4323

 

 

 

 

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About the author:

Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice of 10 years emphasizes DUI defense.  He has been repeatedly recognized as one of Seattle's Best Attorneys! He has been repeatedly recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, and Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and is Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com

 

 

 

Yet another DUI dismissal! Not only DUI, but Hit and Run, and Reckless Driving!

Today I have a very happy client.  He was alleged to have driven his truck into an electrical box, some bushes, then back up and run over a stop sign while 8 people witnessed the incident.  One of the witnesses called 911 and when police arrived, that witness rode with them to the area the truck was last seen.  The officers found the truck with debris from the bushes and matched the tire tread to the marks left at the scene.  Additionally, the truck's hood was warm to the touch, indicating to them that it had recently been driven.

 

The officers were able to ascertain who the registered owner of the vehilce was by running the plate through dispatch.  They then confronted my client at his home and although he admitted to driving earlier, he was never asked about the incident.  The officers just assumed he had to have been the driver.  The witness was unable to identify who the driver was at the time because it was very dark.  My client was arrested and charged with DUI, Hit and Run of Property, and Reckless Driving.  He was also alleged to have blown a .211 and .217 after his arrest at the station.

 

We had an evidentiary hearing last week to address the issue of corpus delicti (proof of driving) and many other issues (probable cause, admissibility of the BAC, etc.).  Prior to the hearing I attempted to negotiate the case with the prosecutor who flat out laughed at me stating there was no problems with their case.  

 

After a two hour heairng and testimony from two officers the judge (at the King County District Court) advised the matter would be taken under consideration and a written order issued subsequently.  Yesterday I arrived at my office and found that order.  The judge concluded that since no one witnessed my client drive, that his admission to driving was insufficient to place him behind the wheel at the time of driving and dismissed the matter.  

 

This goes to show you that you never know what will happen once you get in there and litigate.

 

 

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About the author:

Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice of 10 years emphasizes DUI defense.  He has been repeatedly recognized as one of Seattle's Best Attorneys! He was recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and is Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com