I was just wondering if maybe we could beat this on a technicality. My son-in-law really wasn't drunk. Just got caught in a road block & he had only consumed 2 beers over a 3 hour period.
Mississippi uses the Intox 8000 and this machine prints out a breath alcohol reading which is entered on the DUI ticket.In this case,the machine wasn't working,so there was no reading to be placed on the DUI ticket.A breath alcohol reading is NOT necessary to either charge the crime of DUI,or to be convicted of DUI.Judges,and courts recognize what in our state is sometimes called "common law DUI",and the proof of the crime is based on the arresting officers' observations,such as the lack of coordination,smell of alcohol beverages,slurred speech,dialated eyes,and the like.The more experience the officer is the more Judges/juries will believe the testimony at trial,however two beers over a three hour period would not be enough to legally impair almost anyone,unless they were very light(it's based on the size of a person,the more you weigh the more alcohol you must have to be legally impaired). You did not ask about Field Sobriety Tests (walking a straght line.standing on one foot,or waving a pen in front of the persons eyes)which can be used in some cases as indicators of alcohol impairment.Should these tests have been given ,the results may be used against him.The standard in this state is not drunk but merely under the influence,which is much easier to prove,however,DUI's are harder to prosecute without the intox 8000 results,and field sobriety tests.Good Luck!!!
A Rankin County DUI Lawyer!
I agree with Mr. Carmody's response. The officer is not required to write the alcohol reading on the citation. There are numerous ways to charge an individual with driving under the influence with one of those ways being having a reading. Nevertheless, it sounds like your situation would does not apply to the officer noting the reading because the machine was not working. The prosecution would proceed under the "a" subsection of the citation with is "under the influence of alcohol". This is referred to as "common law" dui and the officer would have to explain to the court the reason why he/she believes the driver is under the influence, i.e. bloodshot eyes, staggering, admission to drinking, smell of alcohol, etc.
On the other hand, based upon my reading of the law, the officer is required to offer you a blood, urine, or breath test shoud they suspect you operating a motor vehicle on the public roadways while under the influence. However, there are no consequence should they fail to comply with this requirment.
The final issue concerning missing information on the citation should be addressed. The court will usually allow the prosecutor to amend the citation prior to and even during the trial should the error become known.
The officer doesn't have to write the blood alcohol level on the ticket, and I've never seen it done. He or she will write it in the police report that is submitted to the District Attorney's office, and the DA will have to decide whether to file the case. There are two main types of breath alcohol screening devices: a preliminary testing machine (PAS) and an evidentiary testing machine (EPAS). Usually the "EPAS" prints out a receipt with the blood alcohol levels (BAC). Courts have ruled that a PAS reading is not accurate enough to convict someone of a DUI/DWI for having a BAC over 0.08. However, even if no EPAS was taken, depending on the facts of the case, your son-in-law could still be convicted of a DUI (without having to prove his BAC was over 0.08) or what is known as a "wet reckless." You son-in-law should hire a local defense attorney or request an attorney from the public defender's office, to see if this is a good case to fight. Good luck!
I agree with my colleague. I am licensed in Nevada, not MS. However, all (or nearly all) states utilize two types of breath tests, the preliminary breath test ("PBT") and the evidentiary breath test. PBT's are administered roadside while the evidentiary tests are generally administered at the station/jail (some of the newer models are mobile and some states have "DUI Vans" that travel around town equipped with evidentiary machines). Police reports usually have a blank to insert PBT results but the arresting officer is not required to write a PBT result on a ticket or report. As my colleague pointed out, PBT results are generally inadmissible (unless to establish probable cause (“PC”) for the underlying arrest). The evidentiary test typically has a "breath test card" that it prints out at the conclusion of the test. If the PBT machine was not working properly then that is not too relevant. PBT tests are used to supplement PC evidence, they are not mandatory to establish PC for an arrest (at least not in Nevada – in fact, it is not uncommon for Las Vegas officers to completely skip the PBT with DUI investigations/arrests). If the evidentiary machine “was not working properly” (which appears to be your case as you mentioned the machine “at the station”) then your son-in-law would have a much stronger defense. He should hire an experienced DUI defense attorney who can assess the case and then possibly retain an expert to establish that the machine was not working properly at the time. Visit NCDD.com for an experienced DUI defense attorney in your area. However, even if the test results get thrown out, your son-in-law may still be prosecuted under “the impairment theory” which does not require any BAC reading at all. This appears to be unlikely in the case you described because it sounds like there will not be too much “impairment” evidence (random roadblock stop, 2 consumed beers, etc.) Either way, your son should hire an attorney as DUI convictions are serious and can be used to enhance subsequent offenses as well.
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