If the cop failed to give you the tests in the manner prescribed by their manual, then it compromises the validity of the results. These tests are fairly complicated, and there is a lot of room for error. You must know these tests inside and out if you expect to destroy the cop on the stand.
Improperly Functioning Breathalyzer
Arkansas uses the BAC DataMaster brand of breathalyzer. Most police departments in Arkansas do not place a premium on upgrading their machines. As such, they simply replace the parts on the one that was originally purchased many years ago. The machine keeps internal records of any problems it has, and this log must be checked by your lawyer to determine if there is room to attack.
In-Dash Car Videos & Booking Videos
Oftentimes, the officer's written version of the events of the stop is VERY different from the actual video recording of the incident. Most of the time, prosecutors and cops expect lawyers to view the video for the first time during the trial. This may be a testament to the custom that has been allowed to be established in Arkansas courts by other defense attorneys who do not demand more. However, this is TOTALLY unacceptable. Your lawyer needs time to review the video in private to determine a plan of attack (i.e. motions to suppress, whether to hire an expert, etc.).
Procedure Prior to Chemical Test Not Followed
You must be continuously observed for at least 20 minutes prior to taking a breathalyzer test. Also, the officer must advise you of your DWI rights IN WRITING prior to taking your chemical test (usually the breathalyzer). As part of your rights, you must be advised that you have the right to a 2nd chemical test, at your expense, the cost of which will be reimbursed to you if you are found not guilty. Also, the officer must meaningfully assist you in obtaining a 2nd test (breath, blood, or urine) if you request one.
Medical Causes of the BAC Result
Certain medical conditions can cause a person to register a higher BAC result from a breath test. These conditions can include persons who have GERD, acid reflux, diabetes, asthma (and takes an albuterol inhaler), and even persons who are on a low-carb diet.
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