Do I have a case if there was a dui breath test error? 5 Answers as of May 25, 2011

I received a dui in Oregon and blew a .21 and then a .24 3 minutes later. This seems like a big difference. Do I have a case? Is there a margin of error to prove the machine was working right?

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Law Office of Jonathan T. Sarre
Law Office of Jonathan T. Sarre | Jonathan T. Sarre
In Oregon, all police agencies use a machine called the "Intoxylizer 8000" to measure BAC. The machine is checked at periodic intervals by a tech from a remote location, meaning no one ever comes out, lifts up the hood and messes around inside it. The machine also has a self-test feature that it goes through each time it is used. Theoretically, if there is something wrong with the Intoxylizer, the machine is supposed to pick it up during the self-test diagnostics and shut itself down. Speaking strictly for myself, I love the idea of trusting a machine to make sure it is working properly, especially since if the darn thing isn't working right in the first place then how do we know the diagnostics are functioning correctly? How do we know that it hasn't just gone crazy like the supercomputer in "2001"? We don't, of course, but DAs and techs from the OSP crime lab swear by the thing and most cops will declaim all knowledge of how the thing works, explaining that they press a button and the machine tells them to press another button, they tell the person to blow and then it spits out the result. As for your result, that does seem to be off. You probably have something to argue with this. Most experienced DUII practitioners know one or two experts on the machine and protocol (usually ex-state police lab techs) who can testify as expert witnesses for the defense on the machine's margin of error and bugs it may have.
Answer Applies to: Oregon
Replied: 5/25/2011
Howard W. Collins, Attorney at Law
Howard W. Collins, Attorney at Law | Howard W. Collins
Dual intoxilizer results of .21 and .24 pretty much cook your goose. Results can rise if the alcohol is not finished processing in the body, so this variation is not outside the possible. But really, all they have to have is a .08 so .21, .24 or any other number from .12 up is pretty bad for you. Sorry.
Answer Applies to: Oregon
Replied: 5/24/2011
Harris Law Firm
Harris Law Firm | Jennifer C. Robins
The two breath samples you provided do not have a large enough difference to indicate the Intoxilyzer 8000 machine was working incorrectly. The variance you described is actually quite common. There is a mathematical equation that may be used to determine if the difference suggests an error with the machine, but the two amounts you provided seem within allowable variances.
Answer Applies to: Oregon
Replied: 5/24/2011
Law Office of Rankin Johnson IV, LLC
Law Office of Rankin Johnson IV, LLC | Rankin Johnson IV
Maybe. The Intoxilyzer 8000 is untested and untestable junk science, but the courts have been very reluctant to permit any sort of testing at all. The state won't lay a scientific foundation as they would with any other test. The Intoxilyzer is not available for purchase by anyone but law enforcement and the way the machine works is totally secret. The defense community needs to fight about this in every case until the courts explain why the Intoxilyzer is any more reliable than a coin flip. I'm glad to discuss this in more detail; give me a call, or e-mail me.
Answer Applies to: Oregon
Replied: 5/24/2011
Edward A. Kroll, Attorney at Law
Edward A. Kroll, Attorney at Law | Edward A. Kroll
You might have a case, but it is not open-and-shut. If you did take it to trial, you might need to have an expert of your own discuss the breath test machine and the error that occurred. However, even if the test is thrown out, the state could still convict you. In Oregon, you can be found guilty of DUI if you blew over a .08 OR you were impaired by alcohol "to a noticeable or perceptible degree." Thus, the police could talk about your driving, your statements, and your physical performance in order to convince a jury that you were intoxicated. The breath test is but one of many pieces that can be used against you. You should speak to a good DUI attorney as soon as you can for a more thorough analysis of your case. I was Portland's chief DUII prosecutor, and would be happy to give you a free consultation. Only an experienced attorney can tell you the strength and weakness of your case, and advise you on how best to proceed.
Answer Applies to: Oregon
Replied: 5/24/2011
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