The Breathalyzer And The DUI Trial

DUI Lawyer in Orange County
The Breathalyzer And The DUI Trial

If you are the subject of a DUI investigation in Orange County, because you were stopped for some traffic violation or at a DUI checkpoint, you will likely be asked to take field sobriety tests and to take a voluntary breath test. This voluntary test, called a Preliminary Alcohol Screening test (PAS test) should almost never be consented to. Moreover, if you are arrested for a DUI, whether it is a first offense DUI or if you have prior DUIs, you will be advised be the arresting officer that you must submit to either a blood test or a breath test to determine your blood alcohol level.

DUI Attorneys in Orange County know that the breath test is not the most accurate test. In fact, the breath testing device will often read a little higher when the person taking the test is in the “absorptive” phase. That is to say, when the alcohol in a person’s stomach is being absorbed into the blood, the breath machine tends to read high. Absorption usually happens within 30 minutes or so of the last drink, but can be delayed by up to three hours depending on how much food is in the stomach. Thus, if you are in the absorptive phase and you take a breath test, the result may be inaccurately high. An actual blood-alcohol level of 0.06% may produce a false reading of 0.08% and this evidence will be used to convict you of a DUI you didn’t commit.

Therefore, it is very common for Orange County DUI lawyers to have an expert testify at the DUI trial and explain this phenomena to the jurors. Although jurors in a DUI trial tend to be very skeptical about this expert testimony, if just one juror accepts the truth of it, a DUI conviction can be avoided. A single dissenting juror will cause a mistrial and more often than not the DA will offer to settle the case with a wet reckless rather than retry the case.

However, in the recent appellate court case of People v. Vangelder (11/21/2013) the appellate department held that DUI Attorneys in Orange County can no longer put on expert testimony on this point in DUI trials. Not because the testimony isn’t accurate or true—it is—but because the legislature doesn’t care whether it’s true or not. The appellate court found that the legislature went to great lengths to make clear that California Vehicle Code section 23152(b) makes it a crime to drive when a breath test shows a reading of 0.08% or higher, regardless of whether breath machines in general tend to read high during the absorptive phase.
Thus, although Orange County DUI Attorneys can still, in a DUI trial, challenge whether the specific breath testing machine used in the case was working properly, they can no longer present evidence about the general fallibility of breath testing machines.

If you are being charged with a DUI and have questions about the penalties for DUI, court proceedings, DMV hearing, or license suspension and would like to talk to an experienced DUI Attorney about your case call The Law Offices of EJ Stopyro at (949) 559-5500. You can also visit our website at www.EJEsquire.com. We have office locations at 1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627 and at 32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675.

Orange County criminal defense lawyers