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Something Doesn't Add Up Here...

Posted Monday, February 11, 2013 by Andrew Charles Huff

There is no question that driving a motor vehicle while your ability to do so is significantly affected is wrong. We all know this and as a society we want these laws enforced. That’s why in the state of Washington, RCW 46.61.502 criminalizes those driving a motor vehicle, potentially any motor vehicle, with a breath alcohol content or BAC of .08 or more within two hours of driving. Using breath test evidence is one way to convict someone of DUI and potentially the easiest. If a prosecutor offers a breath test to a jury and absent some significant evidentiary issue, a jury will most likely return a guilty verdict.

But over the years of my practice, I have represented literally hundreds of people accused of Driving Under the Influence. Among my many clients, there has always been a consistent group of people who have expressed complete surprise when their alcohol breath level crept above a .08, based upon the amount they drank and the space of time these drinks were consumed. In many cases I was able to verify how much my clients drank through witnesses and determined that the amount of alcohol consumed should not have put their BAC over a .08. Yet a couple of hours later, their breath level was shown to be over the legal limit after being arrested. In other words, the amount of alcohol consumed did not match what their proximate BAC level should have been based upon height and weight, etc.

These cases and many others in which the amount of alcohol consumed is inconsistent with the BAC level has provided fueled the debate over the last several years about the accuracy of the DataMaster Breath Test machine used in Washington state…but not for long. Our state will be switching over to a different type of machine soon, which means removing every single breath test machine in every single department and installing the Draeger, the latest in breath testing technology. Although, as I recall, this is exactly what law enforcement said about the DataMaster when it was rolled out not so long ago.

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