Understanding Breathalyzers

Florida, in addition to every other state, uses breath test devices to gauge whether or not a driver is intoxicated and, if so, to what degree. All 50 states have set the level at which the state presumes a driver is impaired (thus making driving in that condition a criminal offense) at 0.08 percent blood alcohol concentration, say Broward DUI attorney William Moore. Many, if not most, people are familiar with that particular component of the drunk driving statute, due largely to the campaigns waged by private organizations and law enforcement agencies against driving under the influence of alcohol. There is another provision, however, under which a motorist can be convicted of DUI: if he or she is actually impaired. For example, a person whose BAC, as determined by a breath test device, is only 0.05 percent can be arrested and convicted of DUI if there is other evidence to demonstrate impairment. According to Fort Lauderdale drunk driving lawyer William Moore Criminal Defense, the other evidence could take the form of testimony by a police officer or sheriff’s deputy regarding the motorist’s performance in roadside field sobriety tests, nystagmus tests on the eyes, slurred speech, and other symptoms of intoxication.
Breathalyzer results are important to the state’s case when prosecuting a DUI case. It is the only crime for which a criminal defendant can be convicted solely on the basis of the results of a mechanical device. There are a myriad of problems associated with breath test devices. They can be unreliable for a host of reasons, says Fort Lauderdale DUI Lawyer William Moore. For example, the devices are calibrated for an “average” person, one whose lung capacity is within that range, and is likely less reliable the farther from that “average” size a person taking the test actually is.
Additionally, some DUI lawyers believe that there is a confrontation problem. The manufacturer of the breath test equipment, a company called CMI, Incorporated, has refused to release the source code for the Intoxilyzer device. The source code is the computer coding that tells the machine what calculations to run. Because a DUI defendant cannot argue against the way the calculations are made, there is an analogy to being unable to confront an adverse witness.
A driver must generally submit to giving samples, including breath samples, for testing when he or she is under suspicion for driving under the influence. This is called implied consent and refers to the legal doctrine that a driver has already implicitly consented to providing samples by driving on Florida roadways or holding a Florida driver’s license.

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Breath, Blood, and the Right to Confront Your Accuser in Broward County DUI Cases

Fort Lauderdale drinking and driving lawyer

Fort Lauderdale DUI attorney William Moore has studied criminal procedure extensively, especially as it pertains to DUI defense. The United States Constitution and the Florida Constitution provide many protections to criminal defendants, such as the right to a speedy and public trial, the right to trial by a jury of one’s peers, and the right to confront one’s own accuser. All of those rights are major tenets of the criminal justice system. The Founding Fathers, as well as legislatures and Supreme Court justices of later times, have steadily insisted that these rights be protected and, where necessary for fairness, expanded. For example, the case that required reading of Miranda rights prior to criminal interrogations was only decided in 1966. Similarly, women and African-Americans were not allowed to sit on juries until the twentieth century. Female and African-American criminal defendants were instead tried by all-white, entirely male juries – which does not really constitute a jury of one’s peers. Now, the law has expanded to prevent lawyers from striking potential jurors during the selection process on the sole grounds of race. Broward DUI Lawyer William Moore is especially interested in the constitutionality of stopping vehicles at sobriety checkpoints.

Fort Lauderdale DUI defense lawyer William Moore Criminal Defense is also concerned about the ongoing use of breath and blood alcohol testing as a constitutional matter. The Sixth Amendment of the United States Constitution guarantees the right to confront one’s accuser. This was included in the Bill of Rights to prevent the abuse of the criminal justice system with secret prosecutions or secret evidence. The Sixth Amendment reads as follows:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Florida and the other 49 states have “per se” driving under the influence laws, in addition to other DUI-related legislation. The per se laws provide that a person accused of DUI should be convicted if the prosecution can demonstrate that his blood or breath alcohol content met or exceeded the legal limit of 0.08. The constitutional issue is that the “accuser” is a machine.
To be convicted of DUI under the per se statute, Broward DUI defense attorney William Moore Criminal Defense says that the breath test machine must show a reading of at least 0.08 and the jury must believe its accuracy. Many factors interfere with the accuracy of the machine, such as mouth alcohol, body size, body temperature, and numerous other factors. Most problematically for confronting the “accuser” is the fact that the manufacturers of the Intoxilyzer machines used by Florida law enforcement agencies will not disclose how the machine works. The company has refused to disclose the machine’s software coding, making it impossible to understand how the machines operate and how accurate they really are.
One YouTube user has set out to demonstrate the unreliability of the Intoxilyzer:

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Breath tests unfair for women

Fort Lauderdale DUI lawyer William Ryan William Moore Criminal Defense knows that DUI issues for women have changed substantially over time. Years ago, women accounted for a very small percentage of total DUI arrests. In fact, fewer than ten percent of all DUI arrests were women drivers thirty years ago, although women account for about half of all drivers. Now, women account for between fifteen and twenty percent of DUI arrests, a sobering increase. A Broward County DUI attorney might ask himself: why are the rates for women rising so drastically?
The reason why women comprise more and more Fort Lauderdale DUI arrests is complicated. Any Fort Lauderdale DUI lawyer can tell you that, anecdotally, he sees more female clients than in the past. Changing social attitudes may result in more women going out in the evenings and consuming alcohol. The changes in attitudes are also reflected in police behavior: police may have taken a more protectionist stance decades ago and perhaps given an intoxicated female driver a ride home rather than to the jail cell. Now, Broward County police treat DUI offenders similarly regardless of their sex.
Another reason why the rates of women arrested for DUI in Broward County are increasing is testing conditions. Our Broward County DUI lawyer knows that the breathalyzers used in the state of Florida are calibrated for a man’s lungs and body composition. Because women generally have lower lung capacity, they blow higher blood alcohol content readings as measured by these devices. The Intoxilyzer breathalyzers are calibrated for the amount of air the average man could blow into the machine, so it does not account for the fact that the alcohol level a woman blows is likely to be somewhat less diluted by air than a man’s is. That means that a man and a woman who technically have the same blood alcohol content may blow different readings – and the woman’s will often be higher.
A Fort Lauderdale DUI lawyer might also tell you that the changes in the law in the 1990s have led to more DUIs for female drivers. The Mothers Against Drunk Driving nationwide campaign led every state to establish the blood alcohol level at which impairment is presumed at 0.08 percent, down from 0.10 percent in most states. The change in the law, coupled with higher police prioritization of DUIs, appears to have led to more arrests of women. One theory is that men may drink more heavily and be more likely to be arrested when pulled over, whereas women tended to drink somewhat less heavily and would not have been arrested with a blood alcohol level of 0.08 or 0.09. Of course, any Broward County DUI attorney knows that a driver can be arrested for DUI if she appears impaired, regardless of her blood alcohol content.

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Breath Tests in Broward County Called Into Question After Operator Fired

The South Florida Sun Sentinel has reported that the Florida Department of Law Enforcement in Fort Lauderdale-Dade County fired breathalyzer analyst Sandra Veiga last week. According to her dismissal notice, she improperly tested the Intoxilyzer 8000 machines, the only breath test analysis instruments approved for use in Florida. According to Florida criminal defense attorneys familiar with the case, the accuracy of as many as 10,000 breath tests used to test for DUI are in question in Fort Lauderdale-Dade County alone, with more in Broward and Monroe counties.
When Intoxilyzers appeared to be failing the required annual state accuracy test, Veiga violated the Fort Lauderdale-Dade department policy by turning off the machines. Her intervention in the machines’ processing prevented the Intoxilyzers from logging errors in a central database in Tallahassee. In addition, Veiga advised other police inspectors on her method of avoiding any record of a failing test. Such conduct calls into question the integrity of the Florida DUI Breath testing program and qualified DUI attorneys have already begun filing motions in Broward, Fort Lauderdale Dade and Fort Lauderdale Counties. Judges in Fort Lauderdale have been agreeable to continuing cases while further investigation continues while the court has been less liberal further south in Fort Lauderdale Dade.
DUI attorney William Moore, immediately filed motions to continue all of his DUI trials involving a breatholyzer upon first learning of Viega’s manipulating the machines in October. He has since been working closely with DUI Intoxilyzer experts in order to best defend against the State charges pending against his clients.
“DUI convictions have serious consequences on ones career goals, in addition to social stigma and DMV complications. When an technician actively takes steps to hide the fact that these machines are failing, we have to put each and every intoxylizer test into question.”
Despite the problem with the FDLE inspector, the Intoxilyzers were still separately inspected monthly by the police departments using them. The Fort Lauderdale-Dade State Attorney’s Office has already indicated that it believes the devices were operating accurately and prosecutors do not anticipate any problems with their DUI cases.
These recent Fort Lauderdale-Dade developments might make you wonder how accurate breath tests are typically. Well, the answer to that depends. The Intoxilyzer 8000 can produce inaccurately high results for numerous reasons.
The first is mouth alcohol, which can include alcohol trapped in the mouth due to extensive dental work, from vomiting, or recently consumed cough syrup. Additionally, if you have blood present in your mouth (perhaps from a recently acquired injury or severe gum disease), the alcohol in the blood will be factored into the reading.

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Florida Judge Dismisses Breath Evidence in 19 DUI Cases

Arrested in Fort Lauderdale | William R. Moore Criminal Defense Lawyer

After a regional alcohol-program coordinator for the Florida Department of Law Enforcement failed to perform a department inspection on an Intoxilyzer 8000 machine, Judge Joyce Williams has opted to toss out breach evidence in nineteen DUI cases that occurred between February 17, 2007 and May 17, 2007.
In most situations, DUI cases are resolved within months of the arrest, but several defense motions have caused delays, according to Assistant State Attorney Greg Marcille.
Yesterday, Judge Williams presided over a hearing where prosecutors attempted to re-introduce breath-test evidence into the effected DUI cases. Without breath-test evidence, the state would be forced to try the cases using other evidence including the smell of alcohol, driving patterns, statements from the defendants, or other physical indicators of intoxication.
Among those who are impacted by this decision is 29-year-old James Estel Gregg, who tested far above Florida’s legal blood alcohol level and showed signs of intoxication during three sobriety tests back in April, 2007.
Technical problem may blow DUI cases, PNJ.com, July 30, 2008

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