On Monday, July 7, a judge acquitted a man on DUI charges because police denied the suspect the right to call a DUI lawyer on his cell phone.
According to Ontario Court Justice Randall Lalande, Harvey Whidden’s constitutional rights were violated when he was pulled over on June 13, 2008.
Whidden had been waved into a vehicle safety inspection lane operated by the police because his windshield had a crack in it.
When Whidden pulled over, police noticed empty beer bottles in the bed of his pickup truck. Police also noticed he smelled like alcohol, and his speech was slowed.
The police asked Whidden to take a breath test, but the officer didn’t have a breathalyzer with him. While they waited for a breathalyzer to be brought from the station, the police officer didn’t allow Whidden to use his cell phone to call a DUI attorney.
The judge ruled that since the officer knew Whidden had a cell phone, he should have allowed him to use it to call an attorney.
According to the judge, the police waited about three hours when Whidden was at the police station and formally issued a demand for a breathalyzer before allowing him to call a lawyer.
Source: The Sadbury Star
According to the Tucson Citizen, a Tucson City Court judge threw out breath test evidence in 19 alleged DUI cases.
On September 8, Judge Margarita Bernal ruled that testimony from a Superior Court case changed her mind about allowing the breath tests to be used in the trials.
In a statement given by Toby Hall, president of CMI, the company that makes the Intoxilyzer 8000, he cites anomalies, errors and issues that can have an impact on the machine’s reliability and credibility. The Intoxilyzer 8000 machine and software is used in Arizona.
Recently, breath tests in more than 100 DUI cases in Tucson have been thrown out because of problems with CMI and the breathalyzer. Many of these cases have been dismissed.
The Chicago Tribune reported that a high school student was pulled over after police clocked her car going 118 m.p.h. near Merrillville, Ind. on September 10. The Crown Point, Ind. 17 year-old girl told police she was in a rush because she was going to be late for school.
According to the police report, the girl, driving a 2000 Toyota Celica, was pulled over for weaving in and out of traffic. The officer detected the smell of alcohol. During a breath test, the girl registered higher than .08%.
She was arrested for DUI and ticketed for reckless driving, unsafe lane movement, speeding and not having a driver’s license in her possession.
According to Ocala.com, Sandra B. Cook was charged with a DUI after her car got stuck on railroad tracks. Officers alerted a train headed in the direction of the car, which was able to stop 100 yards away.
Around 5 am on Saturday, an Ocala police officer saw the woman’s 2001 Honda stuck on the tracks and called for assistance as well as alerted the train.
Officers detected alcohol on the breath of the 23 year-old woman, who bartends in Salt Springs. Cook failed the sobriety test and consented to a breathalyzer, where she blew .077 twice.
In Blackpool, a United Kingdom electrician tried unsuccessfully to beat a breathalyzer test with a copper coin in his mouth. Martyn Shepherd, 47, was stopped while driving a Vauxhall Combo van in St. Annes.
According to the police report, Shepherd was not steady on his feet and had a copper coin in his mouth, which some believe will have an adverse influence on a breath test. Shepherd had over 61 micrograms of alcohol in his system, although the legal limit is 35 micrograms.
Shepherd plead guilty to driving with excess alcohol in front of the Blackpool magistrates. He has been restricted from driving for 18 months and fined over 400 pounds.
This school year, Albert Lea High School students in Minnesota will be taking a breathalyzer test before they are admitted into the prom. School officials are taking to new measures in hopes of cutting back on teen drinking.
Students attending the prom will have to blow into a preliminary capture column of a breathalyzer. A warning light will go on if alcohol is detected on someone’s breath. The student will then be taken aside to have a preliminary breath test.
Those students who pass the first breath test will win a prize, and their name will be entered into a drawing for more prizes. The school hopes to promote a safe and chemical-free prom.
Hundreds of people awaiting trial for Washington DUI in Seattle Municipal Court just became a step closer to beating the charges.
A recent court ruling has barred the results of all breath tests given before December 18, 2007 from being used against the defendants in court. Generally a DUI offense without blood alcohol concentration reading is often harder to prosecute, but the court found that all of the breath tests conducted prior to mid-December may have delivered inaccurate readings.
The breath test machines were brought up to date and determined to be accurate as of December 18, 2007 according to the Seattle Post-Intelligencer.
Of course the Seattle City Attorney is none too happy about losing the teeth of many of the Washington DUI offenses on the docket and plans to appeal the decision.
Even without the breath tests results, Tom Carr says that only a small number of the DUI cases will be dismissed. Without the breath test evidence there are still field sobriety tests, dash cam videos and other evidence available to help prove that the defendants were driving while impaired.
The toxicology lab that conducts the breath tests in Seattle has been under fire since last summer when the lab manager was suspected of signing off on scientific tests that had not actually been conducted.
From there it only got worse and the lab policies and procedures were then questioned and challenged, as was the software used by the breath test machines. Four judges found that no one at the toxicology lab ever checked to make sure that the breath test machine data was being calculated correctly.
Because of the botched breath tests, not only are all the DUI suspects awaiting trial in Seattle off the hook for their breath test results, but going back three years, everyone who faces DUI conviction based on breath test evidence from this lab may now have grounds for an appeal.
In many DUI cases, the results of the breath test administered at the time of arrest are considered strong evidence.
But how accurate are breathalyzers, really? Maybe not as accurate as you (or your arresting officer) once thought. Read about DUI breath tests.
PC World recently posted an article on Gadgets That Tackle Tough Problems on their website. The first device was a keychain breathalyzer.
OmegaPoint claims its BreathKey is accurate to +/- 0.01 percent BAC (Blood Alcohol Content) at a BAC of 0.08 percent. On their website they say law enforcement breathalyzers are accurate within 0.005 percent.
The BreathKey is Food and Drug Administration (FDA) certified, meaning it is “substantially equivalent” to other consumer breathalyzers on the market. OmegaPoint emphasizes that the BreathKey cannot be used as proof you’re below the legal BAC limit nor determine whether you’re safe to drive.
BreathKey is one of many keychain breathalyzers available. Other include AlcoHawk, Legal Limit, and Connectables. Prices on Amazon.com range from about $20 up to $70 and features vary.
While a keychain breathalyzer cannot be used in court, if used reasonably, it could help keep you out of trouble. Be aware that many states have lesser drinking and driving laws. For example, Colorado has laws against both DUI and Driving While Impaired (DWAI) . DWAI applies to any driver who is intoxicated, but below the per se limit of 0.08 percent.
A Florida driver, pulled over for DUI, faces felony charges of bribery.
Mark L. Tearney offered two Brevard County Sheriff’s deputies $500 to take a breath test in his place. He has been charged with two counts of bribery, along with a misdemeanor DUI offense and a citation for speeding in an enhanced penalty zone.
The officers were watching for speeders in a construction zone when they clocked an SUV doing 106 mph.
Allegedly, during field sobriety tests, Tearney said, “I know this is a stupid question, but what if I gave you each $500 to take the test for me.”
Tearney has two previous DUI arrests.
Breath test refusals have long created complications for DUI enforcement, and have been advocated as a strategic means of beating a DUI charge in some states.
Two states have recently acted to address that problem in very different ways: Rhode Island, where the refusal rate had climbed to 85%, has enacted increased penalties for breathalyzer refusal.
At the same time, South Carolina is piloting a program to reduce the benefits of breath test refusal by making a request for a warrant for blood testing the next step in a refusal case.