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Should a FST be taken before a breathalyzer by police

Jacksonville, NC |

i was recently charged with a dwi i was bring a friend was was extremely drunk and vomiting inside my car military police asked if i had drink i replied no he then said i had and told me to drive my car and park and get out i was administer a breathalyzer immediately chewing gum at time of test also when arrested i took to intox test but there machine did not work i then ask to be escort to the nearest hospital and was denied is this worth fighting

Attorney Answers 5

Posted

No they are just part of the officer's many means to help determine if you are intoxicated. They are not required at any point. The gum in your mouth may have raised their suspicions and should usually be removed for 20 minutes of more before any certified breath test is administered. You should consult a local, experienced, defense attorney for more specific advice about your case.

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Posted

The officer needs to have probable cause to believe your driving is affected by alcohol. He can base it on what he observes.

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Posted

Not necessarily

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Posted

Although my bretheren have provided good, general information, there are some unique laws in the State of North Carolina.

While an AlcoSensor (FST) is NOT required, the North Carolina General Assembly wrote into law an important factor to consider:

N.C.G.S. 20-16.3 Alcohol screening tests required for certain drivers; approval of test devices and manner of use by Department of Health and Human Services; use of test results and refusal.

N.C.G.S. 20-16.3(d) reads in relevant part, ". . .or a driver's refusal to submit may be used by a law enforcement officer, is admissible in a court."

In any event, the numerical value on the AlcoSensor is NOT admissible. Only "positive" or "negative" is admissible in court when addressing Probable Cause.

NHTSA standards specifically caution against relying too heavily on Alcohol Screening Devices in forming probable cause. In fact, the AlcoSensor should be used as a confirmational tool and not the primary basis for formulating a legal basis for arrest.

As you might already realize, it is an EXTREMELY COMPLICATED area of law in the Pine State.

Bill Powers
North Carolina DWI Defense

NOTE: Although a response is provided to the specific question, there may be other facts and law relevant to the issue. The questioner should not base any decision on the answer and is specifically advised no client-lawyer relationship has been established. Put simply, seek the advice of competent counsel without delay to discuss the particular aspects of the case, factual scenario and historical background. NOTE: There may be other facts and law relevant to the issue. Readers should not base any decision on the;information provided herein and are specifically advised no client-lawyer relationship has been established. Put simply, seek the advice of competent counsel without delay to discuss the particular aspects of the case, factual scenario and historical background WHY: The content herein is provided for educational purposes and should not be inferred as applying only to DWI / DUI criminal defense. In fact, it may be equally relevant to claims of personal injury involving accidents and the consumption of alcohol or more simply, to the daily practice of law. Bill Powers lectures on such issues on a regular basis with the intent to educate, to be fair, to be accurate and to encourage, open, honest and scientific discussion on the subject. Attorney Bill Powers did NOT represent the Defendant in the particular cause of action.

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Posted

It is almost always worth fighting. To begin, the police are not required to have you do field sobriety tests and you are not required to perform them. However, a jury could see that as a sloppy investigation by the police. If you were chewing gum just before the breath test, then the test was not done properly and could be challenged. The maufacturer's guidelines for breath tests require a observation period of at least 15 to 20 minutes depending on the jurisdiction. If you had alcohol in your mouth, the gum can pick up minute amounts of it that can then throw off a test result significantly.

Any comments offered are not intended as legal advice. This attorney does not know the specifics of the particular case sufficiently to offer legal advice. You should hire a lawyer who can evaluate the details of your specific situation before offering advice.

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