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California still using breath tests: the problems with breath tests.


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11/17/2008
Anders Johnson
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Previously, I pointed out that the State of Washington had thrown out breath test results because they were unreliable.  My hope is that this trend continues to make its way down to California and more particularly, San Francisco and the surrounding Bay Area.

There are numerous problems with the breath tests beyond the human error of conducting them.  Here's a short list of problems seen here in San Francisco which a DUI lawyer should explore in every DUI case:

  1. A police officer who is not properly trained to administer the test.
  2. Erroneous calibration of the machine, causing skewed results.
  3. Pre testing requirements not observed.  For example, the testee is burping, vomiting, or a significant amount of time has passed beyond the 15 minutes.
  4. Medical conditions of the testee which effect the result, such as gastro esophageal reflux disorder.
  5. Elevated body temperature of the testee, or something as simple as alcohol still in the mouth at the time of testing.
  6. Results skewed by such factors as absorption phase, other effectors on in the breath which resemble alcohol, and so on.

The list goes on.  Overall, it shows a faulty testing system that can be successfully challenged in California, and the results not used as a presumption of guilt of the client.

Time will only tell if the California courts follow Washington's lead.



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