OUI: Breath Test Defenses

As of 2011, the legal blood-alcohol limit in all states in the United States for drivers over the age of twenty-one was set to below 0.08%. This number means that your blood is eight one-hundredths percent alcohol. Therefore, if you are caught driving with a blood-alcohol level of .08 or above, you are breaking the law, and you could be charged with OUI in Massachusetts. The Commonwealth of Massachusetts is one of few states that follow the ‘Zero Tolerance’ law for drivers under the age of 21. Zero tolerance laws were enacted to discourage young drivers from drinking and driving. This law drastically reduces the legal blood-alcohol limit for drivers under the age of 21 to 0.02%. In Massachusetts, the police may try to persuade you to take a breath test or a blood test at the hospital. Whether you take and fail the test or refuse to take the test altogether, your drivers license is subject to suspension. If you consent to take the breath test and fail, the Registry of Motor Vehicle may suspend your driving privileges for thirty days. However, if you refuse the test entirely, your driver’s license will be automatically suspended for 180 days. In order for any breathalyzer result to be admissible against a suspect in a court of law, the breath testing device must be shown to have been properly calibrated and have the required certification, and administered by an appropriately trained individual. Therefore, it is very important to have the best Massachusetts OUI/DUI/DWI defense lawyer on your side to challenge the use of all testing.

There are many areas of attack when it comes to defending your OUI case and challenging the error prone breath and blood tests. Alcohol testing is subject to human and machine error, which leads to inaccuracies and inconsistencies in the results. Although the use of breath tests is the most common practice for police officers to measure an individual’s blood alcohol concentration (BAC), it is subject to a wide variety of testing errors that may render the results unreliable. Only a lawyer experienced in this area of the law will know how to blend the facts of your case with the science of the breath test to formulate the most comprehensive and convincing defense to fight your OUI charge.

Prior to a police officer making an arrest and charging you with an OUI, he must first establish probable cause. The use of Breathalyzer test instruments has become an increasingly regular routine in the United States, as they allow police officers to make roadside determinations of intoxication. The Department of Transportation’s National Highway Traffic Safety Administration must certify all breath testing devices used by law enforcement. Once alcohol is ingested and absorbed, the liver converts the alcohol to acetaldehyde and then to acetic acid. The acetic acid is then converted to carbon dioxide and water. The liver metabolizes over 90 percent of the alcohol. During the elimination phase, some alcohol is excreted unchanged in the urine, a small percentage is simply sweated out of the body, and the remainder of the alcohol is exhaled on the individual’s breath 1. Breath testing instruments detect the amount of alcohol present in an individual’s breath sample, which can be correlated to his or her blood alcohol level at the time the test was administered. This method of determining a person’s blood alcohol level holds a high level of authority among those in the judicial system, the problem arises when the breath testing instruments are incorrect, inaccurate, or a police officer makes a mistake administering the test or during the aftermath of the arrest.

Breath testing instruments are small hand held pieces of technology, which like most technology, are often prone to errors. In fact, research indicates that breath tests can vary at least 15% from actual blood alcohol concentration. At least 23% (that's about one out of every four) of all individuals tested will have a BAC reading higher than their actual BAC. Therefore, they leave a lot to be interpreted and analyzed by your attorney and the judge presiding over your case. Breath testing instruments most commonly experience problems with calibration, interfering substances, and mouth alcohol. Most breathalyzers require recalibration at least once a year to maintain accuracy. Thus, if the tester has not received the proper recalibration maintenance, it may lead to inaccuracies and false readings.

Additionally, there are non-alcoholic substances that can contribute to a false reading such as diet, medical illnesses such as diabetes, and a person’s metabolism. Breath testing instruments are also quite sensitive to temperature; the machine is calibrated to test the breath at 34 degrees centigrade, but studies show that at the time of OUI arrest, people generally come closer to 35.5 degrees centigrade. The result of this can mean a 10-20% higher reading. Other common things that can cause false BAC levels are alcohol, blood or vomit in the subject's mouth or “mouth alcohol”, electrical interference from cell phones and police radios, tobacco smoke, dirt, and moisture. Any of these factors can greatly impact your Massachusetts OUI defense.

In an instant, your whole life can change due to an OUI arrest; one minute you are out celebrating a birthday, anniversary or special occasion and the next minute the jail cell is locking behind you. In the event that you are charged with an OUI, having an intelligent and experienced lawyer fighting to defend you can be a life changing decision. Attorney Murphy has successfully represented clients in Massachusetts for 18 years and possesses the knowledge and tools to defend your case. For additional information, please contact the Law Office of Patrick J. Murphy today for a free and confidential legal consultation by calling (617) 367-0450 or completing the contacts tab on our website. As a dedicated lawyer, Attorney Murphy is available 24/7 to discuss your case.

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