breathalyzer

When you are being investigated for a DUI in Ventura County, you may be directed by the cop to submit to a breath test.

How you respond to this may have a significant impact on whether you are arrested and ultimately convicted of a DUI in Ventura County.

If you have not been arrested, you are under no obligation to submit to a breath test, unless you are under 21 or are already on probation. However, the cops will still try to get you to agree to submit to a breath test before arresting you. They want you to submit to a breath test so they are confident that they have probable cause to arrest you. Arrests made without probable cause are illegal and expose cops to civil and criminal liability. So if you have not been arrested, you are not required to submit to a breath test.

Cops will engage in various tactics to get DUI suspects to submit to a breath test before being arrested. Some cops will simply lie and say that you are required to take a breath test. Some cops will say that it is in your interest to take a breath test because they will release you if your breath alcohol content tests under .08. Some cops will say that if you agree to take a breath test and otherwise cooperate with them in the investigation, they will release you from custody early, or agree not tow your vehicle. The bottom line is that you don’t have to take the breath test if you haven’t been arrested.

If you have been arrested for the DUI, then under California law you are required to submit to a chemical test, either a breath test or a blood test. Under limited circumstances you may be offered the option of a urine test. However under federal law both a breath test and blood test is a search and seizure under the 4th Amendment of the U.S. Constitution and you do not have to consent to a search. This means that following your arrest, you have the right to require the cops to get a warrant to conduct a search and seizure of your person by subjecting you to a breath or blood test. Although the case law is currently developing on this topic and there is a general principal in the law that you cannot be coerced to give consent to a search or seizure merely by submitting to the apparent authority of a government agent, you may subject yourself to loss of your privilege to drive a vehicle if you do not voluntarily submit to a breath or blood test following your arrest for a DUI.

Think that breath testing machines are infallible or that a blood alcohol content reading of .08 or higher on a breath testing machine following a DUI arrest in Ventura county means that a DUI conviction in Ventura County is a foregone conclusion?

Not if you hire the right lawyer to defend you. Defective breath testing machines were used in Ventura County in early 2011. That information wasn’t disclosed to the defense until after scores of defendants pled guilty based on the evidence obtained from the defective breathalyzer. The specific device in question is the Alco-Sensor V manufactured by Intoximeters, Inc.

After receiving legally mandated notice from the Ventura County District Attorney’s Office that scores of DUI convictions were based in part on evidence obtained from a defective breathalyzer, Attorney Kenneth Hamilton was able to confirm with the National Highway Traffic Safety Administration that they received assurances from the manufacturer that test results from the defective machines would not be used in court.

Based on this information, and a review of the DUI convictions that had some connection to the defective breathalyzers, Attorney Kenneth Hamilton assisted dozens of clients get their convictions reversed and cases dismissed or sentence modified with reduced penalties.

http://www.vcstar.com/news/defective-breathalyzer-could-lead-to-tossing-out

http://www.vcstar.com/news/local-news/crime/defense-attorneys-say-ventura-county-das-office

*Originally published on 12/8/2011