Speaker 1: In this video we will answer the question how can you defend a breath test case in a DUI prosecution. The answer to that question is coming right up after the intro. Welcome to Gustitis Law. I'm Steve Gustitis and here at my channel we provide hope by imparting knowledge about the criminal justice system and about defending criminal charges in court. If you enjoy the content, if you enjoy the videos that you find here at Gustitis Law, consider subscribing by hitting the subscribe button in the description below. In this video we continue our series on strategies and tactics for defending DWI and DUI cases. Today we specifically talk about how to defend a breath test case. Links to prior videos in the series can be found again in the description below. There are several different components to challenging the validity of a breath test in court. The first is to use other evidence that has been developed at the trial to suggest to the judge or jury that the breath test result just must be wrong. DWI defense lawyers we call that the disconnect defense. We can use that disconnect defense to suggest again to the trier of fact that the chemical test, the breath test in this particular example, is an error. We can use evidence of your good driving for instance to show the jury that you had not lost the normal use of your mental or your physical faculties. Consequently there must be something wrong with the machine and there must be something

Speaker 2: wrong with the test result.

Speaker 1: In a similar fashion, evidence developed at the personal contact phase can suggest that the breath test result is wrong. For instance, if you were not slurring your words, if you were not fumbling for your driver's license or your proof of insurance, if you were answering the police officer's questions typically propounded to you to confuse you and to fluster you, if you answered them well, if you answered them logically, that can be used to show to the judge or jury that you had not lost the normal use of your faculties and that you were not over the legal limit. Other evidence that can be used in court to challenge the test result is your performance on the field sobriety tests, particularly the balancing tests, the walk and turn and the one-leg stand. If you look good on the video, if your balance is good, if you follow the directions of the police officer with only just a few minor mistakes, that is evidence of sobriety as well and your lawyer can use that performance on the sobriety test to suggest that the breath test result, again, is incorrect, that you were not over the legal limit. Those balancing tests can be very difficult. You have to follow many, many different instructions and coordinate that all under the stress and the the watchful eye of the police officer. So when you look good on video, that can be very strong evidence that you were not over the legal limit and that breath test result just must be wrong. The final way to challenge the breath test result is to attack the intoxilizer machine itself. The intoxilizer was developed upon a theory that the amount of alcohol in a person's breath was proportional to the amount of alcohol in their blood. That's called Henry's Law. Now, the problem for the police and problem for the prosecutor is that at the time that you took that test, there is no way that they know what that actual proportion was for you personally. The intoxilizer machine assumes that the ratio was 2,100 to 1, that is 2,100 parts of alcohol in your blood for every one part in your breath. But again, since they do no testing, that's only an average, they do no testing of you personally so that they don't know what the real proportion was. An experienced DUI defense lawyer can use that assumption to help discredit the machine results. For instance, there has been much research done on the different proportions that alcohol is found in the human body. We know that the intoxilizer uses an average, the 2,100 to 1. However, if a person had a real proportion of, let's say, 1,500 to 1, rather than the average, the intoxilizer would overestimate the amount of alcohol in their body. An experienced DUI defense lawyer can use that to discredit the machine result, especially if there's other evidence in the case, like we discussed earlier, of sobriety, like good driving, or good conduct at the personal contact phase, or good performance on the field sobriety tests. In a similar way, there are many other ways to challenge the validity of the breath test result. Lawyers who are well-versed in the operation of these machines and the science and the theories behind these machines can effectively raise those points, utilize them in court to discredit the machine result, and suggest to the judge and to the jury that the test results must be wrong. That's why you need a good, experienced DUI defense lawyer on your side to defend against a breath test case. If you enjoyed this video, if you found it helpful to you, please consider giving it a thumbs up, and also don't forget to subscribe. You can also check out my website at www.GestatusLaw.com. There you can download my free book on defending DUI cases. You can also sign up for my free quarterly newsletter that goes out four times a year to subscribers. I appreciate your visit. I look forward to seeing you the next time where we will continue our video series on strategies and tactics to defend a DUI prosecution. Thanks again.