The MacNeil Firm Ltd.

What Machine Or Human Errors Can Cause A Misreading In A Breathalyzer Test?


First and foremost, if you don’t follow the law, if you don’t follow the rules and if you don’t administer the test the way it’s designed to be administered, that could be a problem. If you don’t operate the machine in a manner that it’s designed to be, that could be a problem. Additionally, these devices need to be maintained. Sometimes they’re in need of repair, but they haven’t been repaired. Sometimes there was a repair but the repair wasn’t successful, because it wasn’t done properly. These machines are prone to electrical interference. As far as individuals, some people that work around solvents or paints on a daily basis can test positive for alcohol, even if they were not drinking.

What Evidence Do You Look For To Refute A Breathalyzer Test?

I look at every aspect of the test, from the arrest to when the breath ticket is printed out. Basically, I have a checklist that I go through to make sure that everything was done properly. If they skip the step or did a shortcut or in some other way, didn’t follow the procedure to a T, that could form the basis of a motion to have that breath result excluded from court.

What Generally Happens During A Blood Draw In A DUI Case?

There’s no observation period for blood tests, but like breath tests, they have specific rules and regulations that must be followed in order to have a successful blood test that’s admissible in court. There are certain tubes that they have to use to collect the blood, there are certain coagulants they must use, there’s a procedure for inserting the needle, and they can’t use an alcohol based rub. Generally, the police officer has to be present during the actual blood test, but other than that, the blood test is performed like any other blood test that you’ve had gone.

When Is The Blood Test Used In Place Of The Breath test In A DUI?

Blood tests are generally used if the individual’s suspected to be under the influence of drugs. Blood tests are also used if the individual is already in a hospital for some reason. If there was a car accident or they were somehow injured or fell ill during the arrest and they’re already in the hospital, frequently the officer will ask for a blood test while they’re already in the hospital, versus having them do a breath test later on. Some jurisdictions keep judges on call so that they can obtain the search warrant for a blood test.

Can Someone Refuse A Blood Test Like They Can A Breath Test?

An individual is not permitted to choose what kind of test they take. In other words, if a police officer asks for a blood test and for whatever reason the individual wants to take a breath test, they don’t get to choose. They can refuse any test, but there are consequences. The consequences are the same, as they are subject to implied consent. The officer is required to read the implied consent warnings, also called the Warnings to Motorists, before administering the blood test. For a first offender, a blood test that is over the legal limit for alcohol or test positive for any other drug would result in a 6-month driver’s license suspension. A refusal to take that blood test would result generally in a 12-month suspension.

How Does The Chain Of Custody Present A Potential Defense In A Blood Test Scenario?

The blood tests must be conducted according to the standards established by the Department of Public Health. These are rules as to how the blood must be collected, how it must be stored, the types of preservative used, and how it is to be transported to the Illinois State Police Crime Lab for testing. If any of those rules or standards were not followed, that’s subject to attack and could be a way to exclude that blood test.

How Accurate Are The Blood Test Results?

A blood test is more accurate than the breath test but again, they’re only accurate if they’re conducted according to the law and according to the Department of Health’s standards. Any deviation from those standards or laws would affect the test, and would be a great opportunity for me to ask to have that test excluded.

What Strategies Do You Use To Defend Clients Against Blood Test Results?

Any sort of chemical test, the blood test or a breath test, would be potentially subject to a Fourth Amendment review. If there’s no probable cause for them to ask for the test, then that test could be excluded. But assuming that there is probable cause, my strategy with blood test focus generally on the Department of Health’s standards, and the laws regarding how the blood must be collected. I evaluate every blood test to make sure they followed every instruction and directive, because any deviation from those standards would be a basis to exclude the test. Furthermore, the prosecution has to lay the foundation to prove that the Department of Public Health’s standards were followed, before the test can be admitted into evidence.

For more information on Machine & Human Errors In Breathalyzer, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (815) 290-9170 today.

Donald N. Macneil, Esq.

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