May 28, 2013
DWIs and Officer Distractions
Here is what happened. You had a few drinks with your meal, like you normally do when you go out. You are not under the influence but you have a hint of Jack Daniel’s on your breath. You are stopped for not having a license plate light working. The officer asked you to do the standardized field sobriety tests and tells you that you failed. The fact is you could never do those tests stone sober either.
Now you are standing in front of the vaunted breathalyzer. You’ve heard about them. Now you are about to be up close and personal with it. You agree to take the test, because you feel you will not test .08 BAC. The officer giving you the test must observe you for 15 minutes with nothing in your mouth that could affect the breathalyzer AND the officer must not be distracted during those 15 minutes. That’s right, for 15 minutes you and your mouth have the officer’s undivided attention.
The officer cannot read magazines during those 15 minutes or take a telephone call from his wife or girlfriend.
During this 15 minute period, you are not supposed to be able to eat, drink, vomit, belch, burp or smoke. Any of these things can affect the results of your test because anything that can affect alcohol moving from your stomach to your mouth can make your blood alcohol content read higher than it really is.
If the officer does not dutifully observe the suspect for 15 minutes or there is a risk that breathalyzer results could be affected, the breathalyzer results must be excluded from evidence. The prosecutor just lost a large piece of evidence against you.
If you are arrested for a DUI, make sure your attorney does a detailed interview for all the facts surrounding the arrest, and for what happened before the breathalyzer was taken. If there is any doubt that protocol wasn’t followed, your experienced attorney should be able to get your case dismissed.
If you have been accused of driving while intoxicated, give the law offices of Daniel Miller a call today at (816) 875-0470.