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If my breathalyzer two tests were 15% difference .109 and .094 in 5 min span then is that challengable in court and with the DMV

Ignacio, CO |

first DUI and officer was certified. I know there is a law in California if its .2 in difference then the tests are negated.

Attorney Answers 5

Posted

More factors exist than just the result number of the breathalyzer. The officer's observations of you at the stop, existence of video of the officer's investigation, other witnesses, the officer's notes on your driving.

Such a difference in the result number can be used both for you and against you. Best to talk to a lawyer who can review the discovery and give you an opinion based on all the facts.

You can reach Mark Solomon at (720) 722-2050 for clarifications to any answers here. This is general informational response is based only on the information given. It should not be relied upon without consulting a lawyer and getting a full consultation. This response to the question does not create an attorney-client relationship. This is general informational response is based only on the information given. It should not be relied upon without consulting a lawyer and getting a full consultation. This response to the question does not create an attorney-client relationship. Mark Solomon Criminal Defense Attorney Solomon Law, P.C. 1733 High St. Denver, CO 80218 (720) 722-2050 http://www.solomonesq.com/

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Asker

Posted

Yea they pulled me over for my right side headlamp out. I did good on the roadsides. only 3 weak indicators. I was very polite and kind. How could the large disparity hurt me?

Asker

Posted

I had the first test done after I was in handcuffs with the PBT and it was .117 plus the second test on the machine was.109 then the third on the machine was .094 so it was going down fast ha

Mark S. Solomon

Mark S. Solomon

Posted

The large disparity could possibly hurt you in that if the numbers are going down after driving it stands to reason that they were higher when you were driving.

Posted

The evidence used against you on a DUI charge will be all of the observed circumstances leading up to your arrest and breathalyzer. This includes your driving pattern, the stopping sequence once you are pulled over, the officers observations upon initial contact with you, your exiting the vehicle, your performance on the field sobriety tests, the preliminary breath test, and the actual chemical test.

You can challenge all of those observations and a good lawyer will. Generally, and I practice in Utah, you are probably referring to the margin of error with respect to the breathalyzer, which here is a +/- .005, meaning that as a defendant you can argue the test may in fact be lower, the prosecution that your BAC may in fact have been higher at the time.

the difference between .109 and .094 in a 5 minute span is certainly significant and worth challenging in both arenas. You will want all of the information on the machine itself: certifications, calibrations, test history...everything to demonstrate that the test performed on you was unreliable for every reason you can find and that in light of every indicia of reliability, including the disparity in the actual test results, such evidence should be given little, if any weight, in proving that you were impaired.

Thanks and good luck.

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Asker

Posted

Thanks a lot. I was just pulled over for my right headlamp out so. I did good on the roadside tests. only 3 weak indicators. I blew a .117 on the PBT.

Zachary J Weyher

Zachary J Weyher

Posted

No worries. I am in Salt Lake if we want to schedule a meeting for a free consultation. A couple of things to keep in mind: (1) the actual numbers from the PBT are inadmissible. It can really only be used as a positive/negative indicator in the decision to arrest you; (2) there are only 3 standardized SFSTs and the type and number of indicators vary for each test; (3) the varied results of the breath test are good facts for you; (4) I love video and rarely have I found a dash cam video that does not help my client when I cross examine police officers (there is always something improper about the SFST administration); FINALLY, and most importantly, you only have 10 days (actual not business) to request your DL hearing before the division. Do not wait. Call me if you need an attorney. Best, Zach

Zachary J Weyher

Zachary J Weyher

Posted

Just to clarify my last message, I am speaking from a perspective on Utah law. DUI laws can vary greatly between states. Consult an attorney in your area. Thanks.

Asker

Posted

Yea I actually only had 7 days to schedule a hearing with the DMV. which I did. I wonder how I can request the video of me...I also think my roadside was on a downhill slant so

Posted

The breath machine is programmed to invalidate the test if there is more than a .020 difference.

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Asker

Posted

so .15 is valid? or can I still challenge it?

Posted

In MN, as M. Forslund has stated, the DMT machine will automatically invalidate the results if both samples are not within .02 of each other. That is the standard in the scientific community.

This is not intended as legal advice. No attorney / client relationship exists because of this response.

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Posted

In Colorado, if the two tests are within .02 of one another, they are considered valid. The margin of error for the Intoxilyzer 9000 is .003. You results can be attacked based on weight and credibility, but will not automatically be thrown out because of the .015 variance between the two samples.

You will need to hire an experienced DUI attorney to help formulate a defense strategy and the best tactics to attack the test results and the remaining evidence like roadside tests. You say you passed, but the officer will say you failed. He has to in order to have probable cause to invoke the express consent law.

Your best bet is to make sure you have requested your hearing with the DMV and to then find an attorney you feel comfortable with. There are thousands upon thousands of license attorneys in Colorado. Problem is their are only a handful that really know the ins and outs of DUI law and the scientific and evidentiary nature of these cases. Do your homework and hire the best attorney you can afford.

The Orr Law Firm, L.L.C - 303-818-2448 - Is Colorado's Premier DUI and Criminal Traffic Defense Law Firm. Rhidian Orr is the senior partner and owner of the firm and focuses his practice exclusively to DUI and criminal traffic matters in the state of Colorado. His decision to answer your questions does not constitute an attorney/client relationship. The Orr Law Firm offers FREE Consultations and we encourage that you contact his firm to discuss your case in more detail.

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