How To Beat a Breathalyzer Test!

      Beat the Breathalyzer!

What commonly causes false positives for breathalyzers? 
AND How can you legally challenge the validity of a breathalyzer? 

This information will help you BEAT THAT BREATHALYZER!

First, What is the law?
Utah uses the Intoxilyzer 8000 breath-testing machine made by CMI. Pursuant to Utah Administrative Code R714 – 500, these machines must be certified every 40 days or less. There are many Utah DUI cases that get dismissed because the certification was NOT VALID.

SO, If you were recently breathalyzed, you should obtain the certification records of the machine to ensure it was certified in the past 40 days. If it wasn't, the test is invalid and you beat the breathalyzer!

Next, as I mentioned in my previous post about fighting a DUI, Utah follows what's called the Baker Standard. This standard requires the police to ensure that absolutely nothing is in your mouth 15 minutes prior to taking the breathalyzer test. 

WHY? Because breathalyzers can pick up "residual mouth alcohol." - (thats the alcohol that is still in your mouth even after you drink it).  So if you have breath spray, gum, tobacco, or anything in your mouth, it will hold that alcohol in your mouth and raise the BAC reading on the Breathalyzer! THIS ALSO MEANS that the police officer administered the test improperly, and the test is invalid!

Finally, Breathalyzers are not %100 accurate! Usually, Breathalyzers are only accurate within .003%. This means, if you have a 0.08% BAC and are charged with DUI, a good lawyer can convince the jury that the breathalyzer results are inaccurate AND YOU COULD BE ACQUITTED!

Tips and Tricks

Some tips that don't work:

• Burping directly into the machine. The alcohol in your stomach is often higher than that in your lungs. However, food and time can reverse that effect.

• Holding your breath. By holding your breath before you exhale into the machine, you allow more time for alcohol to diffuse into your breath. 

• Breath Sprays. These have alcohol in them! You will raise your breathalyzer result by using them before the breathalyzer! 

• Mouthwashes: Listerine is about 27% alcohol. Again, don't try to cover the smell of alcohol. You will raise your Breathalyzer results!

Some tips that have potential to work:

• First, don't follow the officer's orders to "keep blowing." Every officer tells you to keep blowing until you can't anymore. WHY? because when you force the air out of the bottom of your lungs, you are forcing out the air that is most saturated with alcohol! Don't fall for it! Don't overexert your breath! Give a normal breath into the breathalyzer.

• Hyperventilating prior to taking the test. Chemically, this causes the gaseous alcohol in your lungs to be replaced with fresh oxygen. By breathing quickly, and a lot, you exhale more alcohol than what is being diffused into your lungs.  By the time you blow into the breathalyzer, the alcohol in your lungs is thought to have reduced temporarily.

• There are products out there that claim to reduce "residual mouth alcohol." Although these products are controversial, some claim they work. (an example here) The products work like asthma inhalers, but fill the mouth with corn syrup, masking the residual mouth alcohol. However, breathalyzers are supposed to measure the alcohol in your lungs, not your mouth. 

These tricks, however, are risky. I would not rely on the possibility of asking the officer for a moment to hyperventilate so you can reduce the test results. INSTEAD, you should challenge the validity of the test by using the LAW.

What do you do?
So next time you are pulled over, don't ask for a second and begin hyperventilating. Instead, watch for an improper administration of the test by the officer. Was something in your mouth within 15 min prior to the breathalyzer? Did the officer keep an eye on you for the entire 15 min? 

You can also keep an eye on the time. The officer must wait 15 minutes from the time that he checks you mouth. So when he asks you to open your mouth, glance at your watch. 

Check the certification of the breathalyzer! These things are often not certified properly!

Finally, GET A LAWYER! Paying a lawyer $1000 beats paying the State a dime! You don't lose your license, and you don't get a record! (especially because In Utah, a third DUI in ten years is a FELONY! And carries up to a FIVE YEAR SENTENCE! The first DUI can be up to $1500 fine) Don't mess around. Get a lawyer the first time. 

For a complete sentencing guidelines on DUI in Utah, Check out my previous post on fighting DUIs.

DUI defense in Utah

Lisa Steed, who wrongfully arrested multiple Utah citizens for false DUIs.

Just recently, Highway Patrol officer, Lisa Steed, deprived over 30 Utah citizens of their trust in the police system.  Ms. Steed was fired last November for falsifying DUI arrests. She pulled many people over, required them to perform a field sobriety test, then arrested them regardless of their performance on the test.

She had no basis for her arrests and they were performed illegally. Presumably, her motive behind the fraud was to maintain her number one spot for DUI arrests many years running. Many of these Utah citizens who were wrongfully arrested are now filing suit against Sara Reed and the Utah Highway Patrol. They will likely win their cases and receive compensation for the wrongful arrest.

What is the law for drunk driving in Utah? What do you do if you are pulled over for drunk driving? and What can you do if you are charged with drunk driving in Utah?


THE LAW

BAC (blood alcohol content) for DUI:

Under 21	zero tolerance
21 or older	.08%
Commercial	.04%

According to Utah code 41-6a-502:

(1) A person may not operate or be in actual physical control of a vehicle within this state if the person:

(a) has sufficient alcohol in the person's body that a subsequent chemical test shows that the person has a blood or breath alcohol concentration of .08 grams or greater at the time of the test;

(b) is under the influence of alcohol, any drug, or the combined influence of alcohol and any drug to a degree that renders the person incapable of safely operating a vehicle; or

(c) has a blood or breath alcohol concentration of .08 grams or greater at the time of operation or actual physical control.

THE FIRST ELEMENT: 

The Judge will first consider if you were in "actual physical control of the vehicle." This does not necessarily mean driving the vehicle. Nor does it mean that a person has to be on a public road - parking lot and driveway DUI’s are common in Utah.

A famous Utah case that gives you an idea of what "actual physical control" in the judge's eyes looks like is Richfield city v. Walker. In that case, Walker was found asleep, alone in his truck, (which was parked in a hotel parking lot) laying across the seat with his head towards the passenger side. The keys were in the ignition, the lights were on, but the truck was not running. He blew a 0.21% and was found guilty of DUI. The court placed a large emphasis on the fact that the keys were in the ignition. Although the car was not on, the court inferred that the defendant placed those keys in the ignition, and at that moment, he was in actual control of the vehicle. (crazy right?)

Some significant factors that the courts consider are: how the car got there, the condition of the car (whether it could be driven off), where the defendant was sitting, whether he was asleep or not, and where the keys were.

How to prevent a DUI charge?

So this means, do not "sleep it off" in your car! The court repeatedly stated that an intoxicated person should only enter a vehicle as a passenger. If you find yourself in a position that could be construed as "actual physical control of a vehicle" remember: your keys go out of reach, and you go into the passenger seat. Don't keep the keys on you, and DO NOT put them in the ignition. 

THE SECOND ELEMENT: 
Next, the judge will consider the level of impairment. Utah has a "per se" level of intoxication of 0.08% BAC. This means that even if you don't feel impaired and can drive fine, the law still sees you as impaired. In other words, don't determine your intoxication level from how you feel - determine it from the amount of alcohol you imbibed. 

Although the law prohibits you from judging your own impairment from your abilities, the law will judge you from your abilities. Better yet, the judge can find you impaired based solely off your ability to operate a vehicle. Under Utah law, a person is impaired, regardless of the BAC level, if he is under the influence of ANY substance "to a degree that renders the person incapable of safely operating a vehicle."

This comes into play when a police officer gives you a field sobriety test. Even though you blow a BAC under the legal limit, if you fail the field sobriety test, he can arrest you and the judge can convict you for DUI. 

How to prevent a DUI charge?
Do not base your intoxication level off of how you feel. Instead, refer to the drinking chart. If you have had enough alcohol to put you at .08% or higher, DON'T DRIVE! 

Also, don't kid around on the field sobriety tests, even if you have had very little to drink. A judge can convict you on your performance without the BAC level. If you have a medical condition that could affect your ability to perform the field test, tell the police before you do the field tests. 

Illegal Traffic Stop: What can a police officer do when he pulls you over?

Cops are supposed to protect the public; one way they do that is through legitimate traffic stops. But what about when a police officer abuses his power? How far can a cop go during the traffic stop? And, What can you do to stop him?

THE LAW
The law states that: Once the purpose of a traffic stop has been satisfied, the continued detention of a vehicle and its occupants constitutes a second stop, and must be independently justified by reasonable suspicion.

What does this mean? This means that a police officer must have a purpose for initially pulling you over (usually to give you a speeding ticket or warning). AND once that purpose is satisfied, he cannot ask you anything else! 

How does he satisfy the purpose of pulling you over? By writing giving you the ticket or the warning. Once he does that, the purpose of the stop is satisfied and he cannot ask you anything else! 

However, Warning: if you do something before the officer gives you a ticket/warning that would give rise to a reasonable suspicion of criminal activity, he can inquire into his suspicions. 

SO, a police officer pulls you over, asks you the usual "do you know why I pulled you over?" then he gives you a warning for speeding. STOP! He cannot ask you anything else! He can't  then ask you "do you mind if I look in your trunk?" or even "Why are you traveling through here?" He cannot ask you ANY more questions. His purpose for the stop is satisfied. 

If he does, his continued detention of you while he asks you those questions would constitute an illegal stop. 

WHAT DO YOU DO?
Next time a police officer asks you anything after giving you a warning or a ticket, ask him "You already gave me a ticket, so I am free to go, right?" Asserting your rights is never justification for a suspicion. 

WHAT ABOUT QUESTIONS BEFORE ISSUING A TICKET?
Police love to get away with as much interrogation as they can before issuing you a ticket. Is that illegal? It can be! 

THE LAW

The law says that police cannot extend a stop longer than what is necessary to fulfill its initial purpose without additional reasonable suspicion. 

What does that mean? That means Police cannot pull you over for speeding then hold you there so he can ask you unrelated questions or search your car. 

As an example: In a famous Maryland case (Whitehead v. State), the officer pulled Whitehead over and did a routine check of his license and registration. After the cop determined that everything was in order, he delayed issuing a traffic ticket so that a K-9 unit could arrive and perform a search. THIS WAS ILLEGAL! 

The police have a duty to expeditiously confirm or dispel their suspicions (the initial reason they pulled you over). They cannot conveniently forget the purpose of the stop, then pick it up later when they feel like it. Warning: again, if you do something that would give rise to a reasonable suspicion of criminal activity, the officer can inquire into his suspicions. 

SO, a police officer pulls you over, asks you why he did so, then asks you if he can look in your trunk before he writes you a warning. STOP! He cannot investigate anything except the initial purpose of his stop. (See Warning) Even if he starts to ask you other questions like "where are you coming from?" "Where are you going?" "Do you have any drugs on you?" All of these questions forget the purpose of his initial stop and must be justified by a separate reasonable suspicion. 

WHAT DO YOU DO?
First, ask him why he pulled you over to get the officer back on track. He should realize he doesn't have a right to ask you those questions. If he continues, say "Officer I am not a criminal, I am sorry for speeding, was there another reason why you pulled me over?" If he continues, say "Officer, with all due respect, the law protects me from answering questions that have nothing to do with why you pulled me over."

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Nolle Prosequi v. Plea in abeyance v. Expungement

In Utah, a criminal case can be closed either through a Nolle Prosequi or a Plea in Abeyance. What are the differences of the two? What is an expungement?

First, an Expungement:
An expungement is the removal of all court records (and police records) related to the case. This means that the case is removed from public record. This is obviously beneficial for many reasons, but primarily, an expungement removes the criminal charges from showing up in background checks. To attain an expungement, your lawyer will file a motion, and often argue in court.

 Nolle Prosequi:
"Nolle Prosequi" is Latin for “no longer prosecuting.” In Utah, when the State enters a nolle prosequi, the State no longer pursues the case and drops the charges. Even though the case is dropped, a background check will show that the person was charged but not convicted. A Nolle Prosequi case is closed, and can be expunged almost immediately.

Plea in Abeyance:
A Plea in Abeyance is often misunderstood as "a plea of Obeyance." This is because a plea in abeyance requires the defendant to go a certain amount of time without any new charges.  The court can also require the completion of actions like a fee, community service, a drug class, restitution, stay away order, etc. Once a certain time has passed without new charges, and the other requirements are completed, the case will be dismissed. HOWEVER, a background check will show the Charges and Plea. It is always beneficial to expunge a plea in abeyance after completion.

Kigan Martineau: About and Disclaimer

This is a very simple informational Blog on criminal law. Because the writer, Kigan Martineau, attends law school in DC, contrasts are often drawn between Utah law and DC/Maryland law. Please enjoy and feel free to post interesting insights.

Disclaimer: Some of these posts contain legal information, but I am not your lawyer. Take these posts for what they are: information to fill your canteen of knowledge, not legal counsel.