According to the Pennsylvania defense lawyers, the Pennsylvania Supreme Court’s refusal to accept an appeal of the Superior Court’s ruling that the accuracy of alcohol breath tests in highest-rate driving under the influence cases must be determined at trial, has taken much of the steam out of what once seemed as it can be a game-changer for DUI law.
A DUI lawyer with Wagner & Spreha in Harrisburg, Pa, Edward F. Spreha Jr., who was not involved in the case, said that Commonwealth v. Schildt, which had the potential to impact large number of pending driving under the influence cases all over Pennsylvania, is now merely “a footnote”.
According to Spreha and other DUI attorneys, the case did raise an unusual challenge to the scientific accuracy of those tests, the merits of which remain unaddressed by state appellate courts. Arguments same like that may be used either as pretrial bargaining chips or trial defenses going forward, said attorneys.
A Philadelphia DUI defense and personal injury lawyer, Cary B. McClain said, “There’s now a legitimate issue to litigate before a jury and it gives the defense bar room to negotiate for a fair compromise”.
On 25th of February, the high court denied allocator in Schildt.
Last October, defense counsel had asked the justices to take up the case, saying that allowing the accuracy of breath test proof to be determined prior to trial “promotes uniformity in the law, gives a clear signal to future litigants and is also scientifically correct”.
In September 2013, a three-judge Superior Court panel overturned Dauphin County Court of Common Pleas Judge Lawrence F. Clark Jr.’s controversial ruling in Schildt saying that alcohol breath test proof in a driving under the influence case on the grounds that Clark’s determination was premature.
Clark found that breath alcohol testing devices that were used by law enforcement cannot accurately detect BAC level above or below the calibrated range of 0.05 to 0.15% and therefore are not enough to meet the burden of evidence in highest-rate driving under the influence cases.
Lawyers said that Clark’s ruling had the potential to impact a large number of pending DUI cases all around Pennsylvania but the Superior Court never found a scientific analysis of the breath tests in its seven-page memorandum opinion, instead finding that Clark abused his discretion in granting pretrial habeas corpus relief to defendant Jason R. Schildt due to the reason that the state made at least a prima facie showing that Schildt had been driving with a BAC level of 0.16% or above.
The court wanted the case for trial.
Judge Cheryl Lynn Allen said Clark “manifestly abused” his discretion by requiring the state to establish beyond a reasonable doubt the reliability of the breath test administered to Schildt at such an early stage in the case. “In short, the trial court prematurely and improperly held the commonwealth to its burden of proof at trial, in granting appellee’s pretrial motion to quash the complaint”.
Judges Susan Peikes Gantman and Sallie Updyke Mundy were with Allen in making the decision.
Justin J. McShane of the McShane Firm in Harrisburg, said that he did not consider it to be a loss due to the reason that it merely focused on the timing of Clark’s ruling, while leaving the scientific analysis in Clark’s opinion “undisturbed”.
Schildt urged the court to address the scientific analysis in his petition to the Supreme Court, saying the case “presents the best opportunity to provide guidance on a statewide level as to this repetitive issue”. Schildt argued in the petition, “this exact matter will be litigated hundreds if not thousands of times” all over the state but now that the justices have declined to hear arguments in the case, driving under the influence defense attorneys said they don’t believe the courts will be inundated with similar challenges to breath tests.
According to them, a large number of law enforcement agencies all over Pennsylvania have moved away from breath testing to blood testing.
Spreha said, “If you want to fight it on a case-by-case basis, you have to bring in the experts and spend the cash”.
A DUI lawyers with Fairlie & Lippy in North Wales, Pa., Steven F. Fairlie said that defense experts in cases like Schildt “probably cost in the area of $20,000. The average citizen can’t afford that”.
For those defendants with the means to challenge breathe tests, according to the attorneys it can be difficult to justify advising a client to take a driving under the influence case to court.
Advising a client to challenge a breath test at trial means advising a client to risk jail time in lieu of simply accepting ARD, said Fairlie.
Spreha said that lawyers will require gauging whether judges in a particular county have exhibited a proclivity for siding with the defense when they make arguments similar to those that rose in Schildt. “If you know all the judges are finding people guilty regardless of your argument, it’s hard to say to your client, ‘Let’s try again”.
According to Spreha, jury trials are risky due to the reason of their unpredictability but lawyers did agree that the scientific challenge raised in Schildt is an interesting one that could gain traction under the right trial situations.
McClain said, “It’s a good argument and I think you could see juries getting persuaded to follow it”.
News Source: www.TheLegalIntelligencer.com
Barry M. Searfoss Jr., a former state trooper, has been sentenced for a fatal crash that took place in Upper Dublin in 2012 that resulted in the death of a woman.
According to reports, the ex-lawman pleaded guilty to involuntary manslaughter and driving under the influence of alcohol on Tuesday in a Montgomery County Court. The two-vehicle collision took place on a section of the Pennsylvania Turnpike in Upper Dublin which resulted in the death of 21-year-old Robin Williams of Philadelphia.
News Source: www.TheIntell.com
In an attempt to fulfill the requirements of individuals, authors of changes to Pennsylvania’s penalties for 1st time DUI offenders made no one happy.
Only repeat DUI offenders are required to install an ignition interlock in their vehicles which require individuals to give a breath sample after which the device allows the engine of the vehicle to start.
Proposed changes in the law will increase interlock requirement for almost every individual but not in the way the state legislative affairs manager for Mothers Against Drunk Driving, Frank Harris, would like. He wants to see those individuals convicted of drunken driving with an interlock device installed than serve a suspension because according to him, the issue with suspensions is that individuals continue to drive without a driver’s license. He noted, “Ignition interlocks were proven to reduce repeat drunk-driving offenses by 67 percent”.
The legislation that was proposed first would have required drivers to install an interlock only but concerns were raised that this is easy for repeat offenders, so amendments made by the Senate Transportation Committee last week will require drivers to serve out half their suspension prior to having the option to get an interlock and get behind the wheel again.
According to the Centers for Disease Control and Prevention, 67% decrease occurred and it also found that advantage disappeared once interlocks are removed from vehicles. Individuals again start driving under the influence.
A second measure in the Pennsylvania legislation was created to make the changed behavior as it is. It requires that drivers do not fail a breath test on their interlock for 2 months prior to having the device removed, even if they have completed the time designated in their sentence.
The legislation was proposed by State Sen. John Rafferty (R-Montgomery).
Vice chairman of the Pennsylvania Association for Drunk Driving Defense Attorneys, Mike Sherman, said that due to the reason that the interlock device can give false result of positive BAC level, it could mean an inappropriate sentencing extension. According to him, most 1st time offenders are unlikely to repeat their mistake. He said, “When you put an ignition interlock device in that vehicle, when he has to have his boss in his car, when he has to have clients in his car, he’s not going to be able to do that. He may lose his job”.
The cost of renting the devices is almost $2 a day. Washington State created a fund to pay for the devices but that’s not part of the current plan in Pennsylvania.
News Source: www.NewsWorks.org
Rule of Criminal Procedure 574 (Forensic. Laboratory Report; Certification in Lieu of Expert Report)
This rule was adopted in 2013 to address the issues raised by the U.S. Supreme Court’s decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), that held that the 6th amendment confrontation right precluded presentation of laboratory reports without a live witness testifying in the trial. In Melendez-Diaz, the U.S. Supreme Court noted with approval the use of ”notice and demand” procedures as a means of permitting routine laboratory reports to be admitted without the expense of supporting the admission by live expert testimony while protecting a defendant’s confrontation rights.
This rule provides a ”notice and demand” procedure for Pennsylvania. Under the rule, the attorney for the Commonwealth may seek to admit a forensic laboratory report as evidence without the testimony of the analyst who performed the testing that was the subject of the report if notice requirements are met and no demand for the presence of the analyst is made. If the defendant makes such a demand, the analyst would be required to testify before the report could be admitted into evidence.
Nothing in this rule is intended to preclude a stipulation agreed to by the parties for the admission of the laboratory report without the analyst’s presence.
For cause shown, the judge may extend the time period of filing a demand for live testimony or grant a continuance of the trial.
For purposes of paragraph (D)(2) of this rule, a laboratory is ”accredited” when its management, personnel, quality system, operational and technical procedures, equipment and physical facilities meet standards established by a recognized state, national, or international accrediting organization such as the American Society of Crime Laboratory Directors/Laboratory Accrediting Board (ASCLD/LAB) or Forensic Quality Services—International (FQS-I).
Rule 574. Forensic Laboratory Report; Certification in Lieu of Expert Testimony
- In any trial, the attorney for the Commonwealth may seek to offer into evidence a forensic laboratory report supported by a certification, as provided in paragraph (D), in lieu of testimony by the person who performed the analysis or examination that is the subject of the report.
- If the attorney for the Commonwealth intends to offer the report as provided in paragraph (A) as evidence at trial, the attorney for the Commonwealth shall serve upon the defendant’s attorney, or if unrepresented, the defendant a written notice of that fact at the time of the disclosure of the report but no later than 20 days prior to the start of trial.
- A copy of the report shall be provided to the defendant prior to or contemporaneously with the notice.
- Except as provided in paragraph (C), the report and certification are admissible in evidence to the same effect as if the person who performed the analysis or examination had personally testified.
- No later than 10 days following receipt of the notice provided in paragraph (B), the defendant’s attorney, or if unrepresented, the defendant may serve upon the attorney of the Commonwealth, a written demand for the person who performed the analysis or examination that is the subject of the report to testify at trial.
- If a written demand is filed, the report and certificate are not admissible under paragraph (B)(3) unless the analyst testifies.
- If no demand for live testimony is made to the use of the laboratory report and certificate within the time allowed by this section, the report and certificate are admissible in evidence.
- The analyst who performed the analysis or examination that is the subject of the report shall complete a certificate in which the analyst shall state:
- that he or she is qualified by education, training, and experience to perform the analysis;
- a description of his or her regular duties;
- the name and location of the laboratory where the analysis was performed; and
- that the tests were performed under industry-approved procedures or standards and the report accurately reflects the analyst’s findings and opinions regarding the results of those tests or analysis.
- An analyst employed by a laboratory that is accredited by a state, national, or international accreditation entity may, in lieu of the required certificate under paragraph (D)(1), submit a copy of the laboratory’s accreditation certificate.
- The analyst who performed the analysis or examination that is the subject of the report shall complete a certificate in which the analyst shall state:
Official Note: New Rule 574 adopted 2012, effective 2012.
This week, a hearing on legislation that will expand the installation of ignition interlocks in drunken driving cases will be held in Harrisburg. The legislation was proposed by a Chester County’s state senator.
The state Senate Transportation Committee will hold the hearing on Rafferty’s legislation, SB 1036, which will make the installation of ignition interlock mandatory in the vehicles of individuals convicted of DUI.
Sen. John Rafferty who is the head of the state Senate Transportation Committee is forcing the residents to contact their representatives in Harrisburg for supporting the legislation.
Last week, MADD President Jan Withers said, “Currently, Pennsylvania law requires ignition interlocks only for repeat offenders. SB 1036 will strengthen the law to require ignition interlocks for first-time convicted drunk drivers with an illegal blood alcohol concentration of 0.08 or greater for at least six months”. 20 states have interlock laws like that in place, said Withers.
The repeat DUI offenses are decreased by 67 percent with the help of ignition interlocks said the U.S. Centers for Disease Control and Prevention.
Withers also said, “States that are enforcing all-offender ignition interlock laws, such as Arizona and Oregon have seen a reduction in DUI deaths by 43 to 42 percent, largely due to these comprehensive laws requiring all drunk drivers to receive an interlock”.
The law will be amended and it will change the current provision that requires the installation of interlocks in only those individual’s vehicles with drunk driving conviction and license suspension for 1 year or more than that. If the legislation sponsored by Rafferty is passed, the 1st time DUI offenders face mandatory use of the interlock devices.
Last fall, Rafferty said, “This will prevent people who are pulled over and convicted of DUI from getting onto the highway again and be able to harm someone. I am hopeful this will awaken first offenders that they may have a problem”.
An ignition interlock is a device which requires a breath sample for testing the BAC level of a driver before it allows the engine of the vehicle to start. If the BAC level is determined more than the legal limit of driving than the engine will not start. Breath samples are also required after regular intervals of time while the vehicle is in motion to prevent a sober friend from starting the vehicle by providing the breath sample. If the individual will not provide a sample or a sample BAC limit is over certain blood alcohol content limit than it will result in the sounding of alarms.
On Friday, District Attorney Tom Hogan said in a statement, “Drunk driving offenders, and particularly recidivist offenders, are somebody’s death waiting to happen. Tools like the ignition interlock will help us save lives. Drunk drivers will try to think up ways to get around the interlock device, but the game of adapting to stay one step ahead of criminals is the story of law enforcement”.
On Tuesday, the Senate Transportation Committee hearing will be held.
News Source: www.DelcoTimes.com
A warning has been given to all individuals not to drink and drive in the next couple of weeks because there is a nationwide crackdown on impaired driving and local police will be looking for drivers driving under the influence on the roads.
The annual holiday crackdown on impaired driving was started earlier this week by Mothers Against Drunk Driving and the Governors Highway Safety Association, Transportation Secretary Anthony Foxx and National Highway Traffic Safety Administrator David Strickland along with representatives from law enforcement.
In a statement, Foxx said, “With the help of our law enforcement partners, we’re sending a message across the country, today and throughout the holiday season – Drive Sober or Get Pulled Over”.
New guidelines on ignition interlock programs to help states develop and implement a breath-alcohol ignition interlock program were also released by NHTSA. It includes the installation of interlock devices in vehicles of first-time DUI offenders.
Foxx added, “With the release of our model guidelines for ignition interlock programs, we’re helping states improve their efforts to enforce safe driving among convicted offenders”.
All states order installation of interlocks in any way to keep DUI offenders from driving drunk and making people unsafe on the roads, according to the Detroit News, but in only twenty states and four California counties, installation of interlock devices is mandatory for drunk drivers. Interlock is an onboard Breathalyzer-type device to which the driver has to give a breath sample before the car starts and the device doesn’t allow the car’s engine to start if it detects alcohol in the user’s breath.
“States to adopt our new guidelines to protect sober motorists and ensure that individuals convicted of drunk driving learn from their mistakes”, Strickland said.
A research was conducted by NHTSA on drunk drivers and the result shows, “75 percent less likely to repeat the behavior compared to those who do not”.
In 2012, fatalities in accident involving drunk drivers increased 4.6% and claimed lives of 10,322 individuals. In 2011, the number of people who died due to drunk driving was 9,865. According to the agency, most of those accidents involved drivers with a blood alcohol concentration of 0.15% or higher which is almost double the legal limit of 0.08%. 830 deaths occurred as a result of drunk driving accidents during last year’s holiday season. Almost two of every five deaths (41 percent) that occur around New Year’s Day and Christmas (37 percent) were because of drunk driving, over the past decade.
In a struggle to increase alcohol-related road fatalities, the National Transportation Safety Board proposed decreasing the national limit for blood alcohol content from 0.08% to 0.05% last year.
NTSB’s stance was not supported by the NHTSA and MADD, NHTSA said it was “premature” to recommend a decreased in limit because it didn’t have data to support the conclusion that there would be a decrease in fatalities.
The campaign and accompanying law enforcement crackdown began on 13th of December and it will end on 1st of January. It is supported by $7.5 million in national ads on TV and radio. NHTSA’s “Drive Sober or Get Pulled Over” message will also be featured in a new public service announcement.
News Source: www.MSN.com
HARRISBURG – According to a Pennsylvania state court, a Cumberland County judge acted against state regulations when he overturned a five-year driver’s license suspension for a habitual drunken driver.
According to the Commonwealth Court ruling, Judge Thomas A. Placey should not have acted with compassion and should have upheld the suspension against the Maryland woman. The DUI suspect in the case claimed that she had been a crime victim and had been traumatized as a result. The woman said she had been kidnapped and sexually assaulted which lead to her being arrested for DUI three times within six weeks in mid-2011.
The Pennsylvania Department of Transportation appealed Placey’s decision voiding the five-year license suspension after which the dispute was taken to the state court. According to the Commonwealth Court, the five-year suspensions are mandatory for people with three DUI’s within five years.
Credits: This news story was published at Philly.com by the Philadelphia Daily News Staff Writer William Bender on August 09,2012. Bender can be reached at email@example.com, 215-854-5255
Lt. James McCarrick, who has been running Philadelphia’s DUI checkpoints for the past eight years, has seen and experienced hundreds of DUI arrests, and some incidents at these checkpoints have their own genre of cop humor. There is nothing funny about the arrests which McCarrick and other late-night officers have made as these DUI checkpoints really help keep the roads safe, but they have heard all sorts of excuses and explanations from drunk drivers.
“They’ll try anything. It’s pretty comical at times. It turns into a road show,” said McCarrick.
Studies have been carried out to check the usefulness of sobriety checkpoints and statistics reveal that these sobriety checkpoints help reduce alcohol-related crashes by about 20 percent, which means that every dollar invested in the DUI checkpoints can save anywhere from $6 to $23 in costs from alcohol-related crashes. In Pennsylvania, statistics show that the number of DUI-related fatalities have steadily reduced as the number of DUI-related arrests have increased.
The question remains if DUI checkpoints actually help make roads safer. Moreover, if a driver is stopped without probable cause, isn’t it considered a violation of the rights of the driver? People have different answers to these questions, even 23 years after a divided Supreme Court ruled on a Michigan case and provided the legal framework for today’s checkpoints.
Statistics do reveal that sobriety checkpoints help reduce DUI-related fatalities. In Pennsylvania, the number of DUI-related fatalities reduced to 404 in 2012 from 542 in 2004. During these years, the number of DUI arrests increased dramatically, from only 5,529 arrests in 2004 to 14,953 arrests in 2012. Pennsylvania is one of the 38 states that allows sobriety checkpoints.
Sobriety checkpoints are not conducted in the remaining 12 states as these states prohibit them outright. The state of Texas is one of these states which has determined that checkpoints are illegal under its interpretation of the U.S. Constitution.
A drug-recognition expert, George Geisler of the Pennsylvania DUI Association says, “Yes, it’s a momentary intrusion, but when you see the number of lives that we save from impaired driving and the crime we get off the street – the drugs, the guns and wanted people – the juice is worth the squeeze.” Geisler examined impaired drivers at the recent Port Richmond checkpoint.
Another research carried out is of the opinion that “saturation patrols” are more effective than DUI checkpoints when it comes to measuring DUI arrests per hour. With saturation patrols, police target a larger geographic area and look for signs of impaired driving rather than stopping drivers indiscriminately.
DUI attorneys and civil libertarians question whether checkpoints are a violation of the Fourth Amendment. The issue gained national attention when an innocent Tennessee college student posted a video on YouTube on July 4, of police harassing him. He was stopped at a DUI checkpoint and the video showed the police searching his car. The video went viral on social media sites and has been viewed more than 4 million times.
McCarrick however strongly opposes the constitutional arguments against checkpoints presented by DUI attorneys and civil libertarians. “We’ll get the old, ‘What, you got nothing better to do than lock up DUIs when murders are going on?’ and all that nonsense,” he said. He feels that DUI checkpoints help prevent thousands of drunk driving accidents, as thousands of people get killed each year nationwide by drunk drivers.
“If we lock up nine people that evening, we could’ve saved somebody,” he said. “We could have saved that individual from taking his car and wrapping it around a tree. So, to me, no matter what, it’s a positive.”
David Rudovsky, a Philadelphia civil-rights attorney, is of the opinion that officers out on patrol are more effective in curbing drunk driving. He says, “While I recognize the danger of drunk driving, I think the more effective and constitutional way to deal with that is to have officers on patrol, not sitting at a checkpoint.”
The truth is that sobriety checkpoints are often misunderstood. In reality, they are not designed to entrap drivers, which is the popular belief. A usual weekend checkpoint in Philadelphia from March through September, which is conducted by 18 officers, usually nets 8 to 13 DUI drivers. According to police data, these checkpoints are carried out in areas where drunk driving is prevalent.
According to Capt. John Wilczynski, who is the commanding officer of the Accident Investigation Division in North Philly, the overall goal of sobriety checkpoints is to create public safety and awareness. The checkpoint is to create a visual deterrent to impaired driving, so people will make other transportation arrangements if they’re going out drinking. “It’s never about catching people, but if they are impaired, they get arrested,” he said.
McCarrick says that the location of checkpoints is disclosed and at least in Philly, police will not pursue drivers if they turn before entering the two-block “chute” where stops are being conducted.
“If you see that sucker, you can just turn,” McCarrick said.
The stops are usually less than 20 seconds and officers ask a couple of quick questions to decide if the driver is showing signs of impairment or not. They will shine a light in their car and if they do not find any reason to detain the driver, they are good to go. Officers at the sobriety checkpoints will also hand a flier about the dangers of drunk drivers to all the cars passing through the checkpoint.
“Most of the people, especially when they’re sober, are happy to see you,” McCarrick said.
53-year-old Darren Wolfe of Royersford is of the opinion that “Checkpoints are what dictatorships do.” He participated in a checkpoint protest in Montgomery County last year and videotaped police pulling over drivers who turned around.
Organizations like the National Security Agency, Internal Revenue Service and Drug Enforcement Administration are also questioning the need for random stops. Wolfe, who is one of the privacy-minded drivers says, “When people have no privacy, the government can just stop you and ask you what you’re doing and take a look at you for whatever whimsical reason they come up with. We do not live in a free society anymore.”
News Source: www.Philly.com
Maybe you’re a college student heading back from a party with some friends and you’ve had a few too many drinks. Or you’re a parent who’s just come from a Fourth of July party where you had a couple of beers. It was all in good fun, and you don’t feel drunk, but when the cop makes you take a breath test, you’re just over the legal limit of .08 BAC – You know what that means: a DUI Charge.
It’s embarrassing and frustrating, but probably most of all, it’s scary. Will your driver’s license be taken away? Your car? Will you be fined? Have to do community service? Could they even put you in jail? Will you need a Pennsylvania DUI lawyer?
Everyone knows that the Commonwealth of Pennsylvania takes driving under the influence very seriously, but a new law put onto the books on May 8 and effective since June 7, 2012, adds a new way to punish drunk drivers.
Senate Bill 539, Senate District 44′s Senator John C. Rafferty, Jr. has created an entirely new offense which says that anyone found guilty of driving drunk with someone under the age of 18 in the vehicle at the time that the violation occurred has also committed a misdemeanor of the first degree in addition to any other penalties associated with the DUI.
What does that mean? Well, imagine that even though you’re of age, one of your college friends isn’t. When the cops arrest you, he checks IDs and discovers that the freshman girl you have been driving is actually 17! Now, you not only face that DUI, but another misdemeanor charge, just because she is not an adult.
Same thing applies if you’re a parent driving your kids home from a family barbeque and test just over the legal limit. Maybe you thought you were fine, but it’s the number on that breath test that matters, and you’re going to be hit much harder, because your children were with you in the car. It’s the state of Pennsylvania’s newest way to protect kids and ratchet up the punishment for anyone who decides to drink and drive.
Penalties Associated with New Pennsylvania DUI Law
Obviously, no charges are good charges, but DUI attorneys will tell you that, in general, misdemeanors aren’t that bad – at the very least, they’re far preferable than being charged with a felony. In this case, though, that’s not true. This law carries with it incredibly steep penalties that can alter the course of your life – especially when you add in the fact that it’s a separate charge from the DUI.
So what exactly are the penalties that come along with this new Pennsylvania DUI law?
75 Pa.C.S.A. S 3803(b)(5) Penalties:
First-time offenders can expect to receive 100 hours of mandatory community service that must be completed as well as a fine of at least $1,000. Second-time offenders will have to spend at least one month and up to six months behind bars, as well as paying a fine of no less than $2,500. And if you’re found guilty of breaking this law 3 times or more, you will be incarcerated for at least six months, and it could last up to two years.
Fight Your Charges with a Pennsylvania DUI Attorney
Since it’s pretty difficult to argue that the underage person wasn’t really underage (or wasn’t actually riding with you in the car), the best course of action to fight these kinds of charges is to fight the DUI itself. Many people think that there is no way to fight a DUI once they have been charged, but this is not the case. Even with a failed BAC (blood alcohol content) test, people have not only fought DUI charges, but won! The trick is having a good Pennsylvania DUI lawyer on your side who knows the law.
There are many reasons why a DUI arrest might be reduced or even thrown out of court altogether. Perhaps the officers didn’t follow correct procedure, lacked reasonable suspicion that you were committing a crime or a traffic infraction, or the breathalyzer they used wasn’t calibrated properly, amongst other possible defenses. Or you have GERD or other medical disorders that complicate taking a breath test and can throw off its readings.
Depending on the type of device used, BAC tests can be artificially inflated, so make sure you choose a DUI attorney with experience fighting these types of charges. That way, you can make sure that you pursue every possible angle to ensure that you receive a positive outcome.
The question is often asked of me whether chewing tobacco can affect DUI breath testing results. Personally, I have run experiments on a number of DUI breath testing devices, such as the Intoxylizer 8000, Breathalyzer 900 and Alcotest 7110, with varying results. Scientifically, one recent study has shown that Philadelphia’s breath testing device will register false readings, under certain circumstances, when chewing tobacco is present in a person’s mouth.
Science and Justice Magazine published a 2012 study, done by the Albuquerque Police Department Criminalistics Laboratory, that involved “dosed” chewing tobacco and the Intoxilyzer 8000. This breath testing device is the same device that the Philadelphia Police Department uses to test suspected drunk drivers. The results of this study proved interesting.
The researchers in this study used 14 completely sober test subjects who gave breath samples with dosed tobacco and without dosed tobacco in their mouths. In order to “dose” the tobacco, it was mixed with a small amount of liquor. Various types of tobacco were used, including long cut, fine cut, and pouch. The brands of tobacco varied as well – Skoal, Copenhagen, Lancaster and Marlboru.
The results of the study showed that the Intoxilyzer 8000 gave a .00% reading for all 14 test subjects with the non-dosed tobacco. However, when the dosed tobacco was used, a number of the test subjects gave breath samples that registered as high as .05% BAC. This means the breath testing device was incorrectly stating that perfectly sober test subjects had fairly significant amounts of alcohol in their systems.
The researchers came to the conclusion that a number of safeguards should be followed in order to ensure that chewing tobacco would not affect DUI breath test results. First, the operator of the machine should always check the mouth of a person before breath samples are provided in order to make sure it is free of any tobacco. Second, there should be a waiting period of 15-20 minutes after the mouth is checked.
In Philadelphia, it is not specifically required that a police officer check a subject’s mouth before breath testing. This is certainly a problem if chewing tobacco is present in a subject’s mouth. However, there is a required 20 minute waiting period prior to breath testing.
Commonly, chewing tobacco users will dose their own tobacco with alcohol in order to give the tobacco better flavor. If the tobacco chewer has also consumed alcohol, the combination of the two could cause the Intoxilyzer 8000 to give false test results up to .05%.
Even if the tobacco chewer did not does his own alcohol, physical issues, such as reflux (GERD), could potentially cause false breath results as well. Severe refluxing may cause raw alcohol in a person’s stomach to be forced into the mouth. This raw alcohol has a potential of being absorbed and retained by the chewing tobacco. The end result is a potentially false breath reading.
Regulations require that all foreign objects, such as tobacco, be removed from a person’s mouth before breath testing. So, even if the person does not have reflux or did not dose the tobacco, the presence of chewing tobacco will be reason enough to have breath tests results thrown out of court. A knowledgeable and experienced DUI lawyer will ask a client questions concerning tobacco use and will be able to prevent the prosecution from using breath test results, if that client had chewing tobacco in his mouth at the time of breath testing.