If you are stopped for suspected OUI, brought to the police station, submit to a breath test and score a number of .08 or higher, there are legal motions that may cause a judge to throw out evidence of that test, either before trial or before the jury hears the evidence.
First, we may learn through discovery about the machine’s history. Sometimes the internal solutions are at greater variance than permitted. At other times either the manufacturer’s guidelines do not conform to this particular state’s standards or the local police station has failed to timely certify the machines. The required paper trail for these machines is not always what state regulations require. If a judge is not satisfied with the reliability of this significant scientific evidence, the judge may suppress the evidence well before trial starts.
Another legal pitfall for the police is their potential failure to administer the test properly. Because the machine only indirectly obtains alcohol blood content through air from our lungs, the police have to watch us for 15 minutes before the test is administered, to make sure we haven’t contaminated our mouths by burping, hiccoughing or regurgitation. Oftentimes the police are videotaped during this procedure. If we watch them spending more time on their paperwork or chatting with colleagues, we may very well be able to persuade the judge to throw out the test.
If you have other questions, please don’t hesitate to call me at 508-243-4877. Doug Stoddart.