Were You Arrested For DUI and Submitted To a PAS Breath Test? You May Need To File A Motion To Suppress

In many cases the police take a breath sample in the field (PAS, short for preliminary alcohol screening) and fail to properly advise the person of their right to refuse under California law. Because the officer is seeking a sample of a person’s deep lung air, a breath sample is a search, Skinner v. Railway (1989) 489 U.S. 602, 616-617, which is not the case with other FSTs, See People v Bennett (1983) 139 Cal.App.3d 767, 771, and given that warrantless searches are presumptively illegal, the administration of the PAS test requires actual consent. Here there was no consent.

Furthermore, there is no implied consent to take a PAS test. Vehicle Code §23612 (a)(1)(A) provides that “any person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood if lawfully arrested . . .” V.C. §23612 (a)(1)(C) provides in essence that “the testing shall be incidental to a lawful arrest” . . . for DUI. Vehicle Code §23612(a)(1)(A) and 23612(a)(1)(C) do not apply to the P.A.S. test because the defendant was not lawfully arrested when the police searched defendant.

Where the government relies on consent to justify a warrantless search, it must establish by substantial evidence that the consent was voluntarily given. Mere acquiescence to a claim of authority will not suffice. The People must show that consent was uncontaminated by any duress or coercion, actual or implied. People v. Challoner (1982) 136 Cal.App.3d 779, 781. When a driver is confronted by an armed and uniformed police officer to blow into a breath box on the roadside or face arrest, the circumstances are pregnant with coercion.

Here defendant never vocalized any words whose meaning could be construed as consent to the test. Although he offered no resistance to the administration of the PAS test, the defendant’s conduct can only be construed as “submitting” to a PAS test.  There was no manifestation of consent. The evidence instead shows that defendant submitted to the search and that this submission was due to the officer’s expression of lawful authority.  Acquiescence to lawful authority does not amount to consent. (See People vs Ling (2017) 15 Cal App 5th Supp 1.)

California law requires the officer to tell the suspect they have a right to refuse the PAS. The Police Officer clearly failed to follow the law in this case.

Vehicle Code section 23612 (H and I) states:

(h) A preliminary alcohol screening test that indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving a vehicle in violation of Section 23140, 23152, or 23153 is a field sobriety test and may be used by an officer as a further investigative tool.

(i) If the officer decides to use a preliminary alcohol screening test, the officer shall advise the person that he or she is requesting that person to take a preliminary alcohol screening test to assist the officer in determining if that person is under the influence of alcohol or drugs, or a combination of alcohol and drugs. The person’s obligation to submit to a blood, breath, or urine test, as required by this section, for the purpose of determining the alcohol or drug content of that person’s blood, is not satisfied by the person submitting to a preliminary alcohol screening test. The officer shall advise the person of that fact and of the person’s right to refuse to take the preliminary alcohol screening test. (Emphasis Added).

The California Vehicle Code §15 directs that the use of the term “shall” is mandatory as it relates to the language contained in Vehicle Code §23612.

Indeed, People vs Jackson (1990) 189 Cal App 4th 1461 confirmed the requirement that a driver be advised of the statutory right to be advised of the purpose of the search and to refuse the intrusion as mandated in VC 23612.

The failure of the officer to follow the legal command to inform the defendant that he had an expressly enacted right to refuse the PAS test, has Fourth Amendment significance.

Here, because the officer failed to comply with the law there is no evidence of a “knowing and intelligent waiver” of the right.

Courts have long held that the “touchstone of the Fourth Amendment to the United States Constitution is reasonableness. (See Florida v. Jimeno (1991) 500 U.S. 248, 250), it is not reasonable for a policeman to ignore a statutory command designed to protect people’s liberty. As such, the PAS numerical results should be suppressed as unreasonable and collected without a search warrant.

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Arrested For DUI, Do You Need A Criminal Defense Attorney Or A DUI Lawyer?

Matthew Ruff, Torrance Criminal Defense Attorney

In California the charge of driving under the influence is a misdemeanor criminal offense unless someone is hurt or the accused has more the 3 priors in the last 10 years. The offense carries stiff penalties such as potential jail time and loss of driving privileges. When choosing who to defend you is it better to get a criminal defense lawyer or someone who specializes in drunk driving cases?

Since the charge includes DMV consequences in addition to possible penal consequences it is best to choose an attorney who has special knowledge of DWI and the intricacies involved. For example, the administrative hearing associated with the case involves evidentiary rules and procedures more akin to civil than criminal. The unique legal rules require an understanding of a broad spectrum of law.

The evidence in a driving while intoxicated case is also very different than any other case. For instance, the tests given to a suspected impaired driver are called SFST’s and require an understanding of NHTSA standardized training and the protocol and methods utilized in the administration of the tests. A DUI Lawyer is educated on the methods to attack the tests in Court and to cross examine the police officer regarding any mistakes made in the investigation.

With regard to the chemical test aspects of the case, it is imperative to have an understanding of the science and regulations which govern drug and alcohol testing in the State of California. You see in order to establish defenses in the case you must be able to spot issues such as defects in the blood collection process or how the breath test was conducted. Moreover, the 4th Amendment to the Constitution which protects citizens from unreasonable searches and seizures plays a big part of driving under the influence practice. The lawyer must have a working knowledge of the case law and statutory laws governing the challenge of police practices.

Here’s a recent example of how specific knowledge lended itself to the favorable resolution of a DUI case in Torrance Court. The client chose a breath test and Matt obtained the records of the machine used. He discovered a malfunction in the breath sample hose heater which he used to get a reduced charge in the case.

Another example is a case where the client submitted to a blood test and the BAC came back well above the legal limit. At the DMV hearing Matthew was able to expose the fact the sample may have been collected in violation of Title 17 of the California Code of Regulations. As a result the License was returned. You see, the Department of Motor Vehicles gives great weight to a violation of official regulations therefore a good understanding of the relevant rules and regulations will assure a favorable outcome. Likewise, in another retained case Counselor Ruff was able to expose a violation of then CCR 1219.3 which compels the breath test operator to continuously observe the subject for a minimum of 15 minutes prior to the collection of a breath sample, result was a dismissal and return of driving privileges.

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Does a Pilot Need To Report A Refusal to the FAA?

The answer to this question requires a brief discussion laws, rules and regulations. First, 14 Code of Federal Regulations (CFR) 61.15(e) requires that everyone holding a pilot’s license report motor vehicle actions (see 61.15(c) for definition but it includes DWI/DWAI conviction and breath test refusal revocation of license) to the FAA within 60 days. The contents of the report are described in 14 CFR 61.15(e) but at a bare minimum must include (1) the person’s name, address, DOB, and airmen certificate number; (2) the type of violation that resulted in the conviction or the administrative action; (3) the date of the conviction or administrative action; (4) the state that holds that record of conviction or administrative action; and (5) a statement of whether the motor vehicle action resulted from the same incident or arose out of the same factual circumstances related to a previously reported motor vehicle action. Note that the fifth point specifically references cases where a driver loses his/her license and is convicted of DWI/DWAI stemming from the same arrest. That said, a pilot’s license holder must report each of those motor vehicle actions with reference to the preceding action. Failure to comply with this section will result in denial of an application for a license for up to one year or suspension/revocation. See 14 CFR 61.15(f).

Top Torrance Criminal Lawyer
Matthew Ruff, Torrance Criminal Defense Attorney

 Further instructions for reporting and a guide for doing so can be found here: https://www.faa.gov/about/office_org/headquarters_offices/ash/ash_programs/investigations/airmen_duidwi

14 CFR 61.15(d) says that, except for a motor vehicle action that results from the same incident, a motor vehicle action occurring within three years of a previous motor vehicle action is grounds for denial of an application for a license for up to one year or suspension/revocation. That may be good news on its face, but a first-offense DWI arrest and/or refusal revocation is not out of the woods.

Pilot’s license holders must re-apply for their medical certificates on a regular basis. How often depends on the pilot’s age and rating. The application for a medical certificate (sample of which can be found here: https://www.gleim.com/public/pdf/ltf/faa_form8500.pdf

Question 18v, of the application, asks for any history of (1) arrests and/or convictions involving DWI/DWAI (have seen a couple versions of the applications online—appears that the older version asked for just convictions while the newer versions may ask for arrests as well); or (2) convictions or administrative action that resulted in a loss of driving privileges. If the answer is yes, that person is expected to provide further explanation that’s defined in the application. The person reviewing the application, called an AME, will review this information consistent with these instructions by the FAA:

In summary, when a pilot gets stopped and arrested for DUI and is issued a notice of suspension of their driving privileges he or she faces the reality that reporting the incident to the FAA will often be required, regardless whether they have been convicted in Court. It is wise to speak to an experienced DUI Lawyer if you have questions about your future. Our Attorneys can answer questions such as ”what are the consequences for a pilot convicted of a drunk driving?” and ”will I lose my pilots license if i get a DUI”.

If you are facing an upcoming Court date for DWI in California call Matt today for a discreet consultation about your case.

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Torrance Criminal Defense Attorney Matthew Ruff Explains Domestic Violence Laws in California

Anyone facing an upcoming DV criminal charge can easily be confused, scared and unsure of what the future holds, this article will explain the various domestic violence charges that can be filed against a person in the Torrance Court.

The most common crime involving DV is the Penal Code 273.5 charge that requires an actual injury or “traumatic condition” be inflicted on the victim. An injury does not need to be substantial or serious, it can simply be redness or a mark, however there must be something visible or medically diagnosed. This offense is commonly booked as a felony but it can be reduced or ”wobbled down” to a misdemeanor based on a variety of factors. The crime is sometimes referred to as ”spousal abuse” and it carries a minimum bail of $50,000.00.

Actual Case Result of Torrance Domestic Violence Attorney, Matthew Ruff

The second most common domestic violence charge is the crime of Penal Code section 243(e)(1). This offense is a misdemeanor and requires the person touch, assault, or batter an individual in a rude or threatening manner. The victim must be someone with whom the accused has had or us having a dating or intimate relationship, such as a boyfriend, girlfriend, wife, husband, etc. The bail on this offense is $25,000.00. The primary difference between this criminal charge and the PC 273.5 is that no injury or ”traumatic condition” was inflicted on the alleged victim. Put another way, the 243e1 is an assault or battery on a person where no mark was left or injury caused.

With regard to the potential punishment or consequences of the crimes discussed above, the misdemeanor carries a maximum penalty of 1 year in the county jail whereas the felony carries up to 3 years in a California State Prison. In addition, there are mandatory conditions of probation that must be imposed in every case such as domestic abuser classes, fines and the fact that a person convicted of any of these crimes can no longer own, possess or use a firearm.

There are many other crimes that fall under the “Domestic Violence” umbrella because the law allows the DA to classify any violent crime against a person with whom you have had a dating relationship a DV offense, however the two discussed above are the most common.

Torrance Criminal Defense Lawyer Matthew Ruff has nearly 30 years experience fighting domestic violence charges. Matt has obtained acquittals, dismissals, and all manner of reductions of these types of crimes. For more information about your particular case contact Matt directly for a discreet consultation and strategy session.

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I Got A DUI in Texas But I Am Moving To California, What Will CA Do?

Here is the scenario: Client has a pending DWI in Texas. He currently has a Texas Driver’s license but he is living in California.  If he sits out his 6 month license suspension in Texas and then Applies for a California license, will California give him a License and 2) will he be required to have SR-22 insurance in California 3) and if so how long? 

He should apply for a CA license before his TX license gets suspended.  CA would only then suspend his CA license if it picks up on the TX suspension—that won’t likely happen unless the CA DMV has some reason to run his driving record (Texas won’t report it out because he wasn’t license in CA at the time of the incident).

California is not going to require anything of him because the incident happened before he was licensed in CA.  However, he will want to get the TX suspension lifted asap and keep it lifted by maintaining the SR22 for the two years required on the Texas DUI case.

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Motion To Exclude Use Of Term “Drug Recognition Expert” (DRE) at Trial.

A Drug Recognition Expert (DRE) is a cop who has taken a specialized training course. According to the training manual, “The Drug Recognition Expert course is a series of three training phases that, collectively, prepare police officers and other qualified persons to serve as drug recognition experts (DRE).”. See NHTSA DRE Training Manual R5/13. DRE cops are used extensively in criminal cases where a DUI is charged involving drugs.

However, the term “Expert” has a very specific meaning in a legal context. In California a witness testifying in the form of an opinion may state on direct examination . . . his special knowledge, skill, experience, training, and education) upon which it is based . . . . . The court in its discretion may require that a witness before testifying in the form of an opinion be first examined concerning the matter upon which his opinion is based.” (Evid. Code, § 802.).

Under California law a DRE must qualify as an expert under the evidence code and present a proper foundation, i.e., “a description of the DRE’s training, education, and experience in administering the test, together with a showing that the test was properly administered.

In many DUI cases police officers are referred to as Drug Recognition Experts by the District Attorney. This title should be objected to and the DA should be admonished to not use the title “expert” when referring to such witness before the jury.

To allow the officer The title of “Drug Recognition Expert” usurps the Court’s sole discretion to qualify expert testimony.

More importantly, it unduly suggests to a Jury that they should give the DRE more weight and credibility than they would other witnesses – infringing on their fact-finding function.

Instead of referring to the witness as an expert, you may want to propose an alternative such as “Drug Recognition OFFICER” or “Drug, Recognition EVALUATOR” as substitute titles for the police officer.

Ultimately it is up to the jury to decide if a witness is an “expert” or not. You should not allow the prosecutor to brain wash the jurors into believing he or she is. If the Court allows the witness to be called an expert it gives the jury an impression that the Court has endorsed this witness and cloak he or she with credibility before the jury ever considers the evidence.

Some of the most damaging evidence in a drug DUI case (DUID) will come from the DRE, it it important to try and neutralize that evidence whenever possible. Asking the Court to refrain from using a prejudicial term when referring to said witness is a good start.

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What Are The Consequences of A DUI on DACA?

Recently I represented a young man charged with DUI in Los Angeles County. The client was a a recipient of DACA and was afraid of the impact a driving under the influence conviction would have on his ability to remain in the United States.

In defending this client, I embarked on a journey of education in Federal Immigration Policy. What is DACA? It is an acronym, Deferred Action for Childhood Arrivals (“DACA”) is a reprieve from deportation that can be granted to immigrants who are undocumented, were brought to the United States as young people, and are either currently attending school, graduated from high school, or were honorably discharged from the U.S. military. The program alleviates deportation risk, comes with temporary employment authorization, and can create a path to permanent lawful status. In implementing the DACA program, the federal government built in strict conviction-based bars. These include convictions (infractions, misdemeanors, and felonies) for “driving under the influence (“DUI”). DHS did not include traffic offenses in the absolute bars to young people receiving DACA.

In implementing the DACA program, the Federal Government included strict bars, including a conviction for “driving under the influence.” DHS’s formal FAQ regarding DACA states, “[i]f you have been convicted of a … significant misdemeanor offense … you will not be considered.” The FAQ goes on to say that “[f]or the purposes of” DACA, “a significant misdemeanor is a misdemeanor … for which the maximum term of imprisonment authorized is one year or less but greater than five days … and that … [r]egardless of the sentence imposed, is an offense of … driving under the influence.” Vehicle Code §§ 23152 and 23153 fit these criteria. Both convictions are punishable by more than five days imprisonment. Both convictions are an offense of driving under the influence. Immigrants otherwise eligible for DACA will not be considered if convicted under either of these DUI statutes.

What can be done to avoid the harsh consequences that a DWI will cause DACA kids? The best alternative is a plea to the offense of reckless driving involving alcohol or drugs, commonly referred to as a “wet reckless”. A § 23103.5 offense is not a DUI offense for purposes of DACA, because there is no finding or requirement that the defendant drove under the influence of alcohol.

Many criminal defense attorneys in California report a conviction for wet reckless will not result in a per se bar to DACA. Anecdotal evidence indicates that DHS has granted DACA in cases involving § 23103.5 convictions, having found them not to be significant misdemeanors. As DHS acknowledges outright in its FAQ, “the decision whether to [grant DACA] in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances,” and thus a § 23103.5 conviction may serve as the basis for a discretionary denial of DACA. However, this is critically different from convictions under § 23152 or § 23153 which outright preclude a grant of DACA absent “extraordinary circumstances.” See Moncrieffe v. Holder (2013) 569 U.S. 184, 204 (distinguishing between mandatory deportability and the ability to seek discretionary relief that the government may decide whether or not to grant).

For noncitizens otherwise eligible for DACA, the difference between a conviction under VC § 23103.5 as compared to VC § 23152 or § 23153 is significant; whereas the former will allow for consideration of a DACA application, the latter two will not. This explains and exemplifies why the Supreme Court has held that “deportation is … intimately related to the criminal process,” further observing that state and federal laws have “enmeshed criminal convictions and the penalty of deportation.” 559 U.S. at 365-366.

In codifying PC §§ 1016.2 and 1016.3, California has provided a statutory framework for prosecutors and defense counsel to engage in the plea bargaining process under modern and current terms where immigration consequences, like DACA, are bound up in rather than unrelated to the state’s criminal prosecution and the result for a defendant. California’s government intended, and the Supreme Court has held time and again, that criminal cases should resolve in a manner that allows noncitizens “to enter ‘safe harbor’ guilty pleas [that] do not expose the [alien defendant] to the risk of immigration sanctions.” Mellouli v. Lynch, 135 S. Ct. 1980, 1987 (2015) (internal quotations omitted, brackets original). In criminal cases of DACA-eligible noncitizens, a plea to VC § 23103.5 rather than a DUI statute accomplishes this very ideal.

I want to report a happy ending to my DACA client. After fighting the case for almost two years I was able to obtain a plea offer to a VC 23103.5 with a substantial amount of community service. This resolution was quite an accomplishment for the client considering the case involved a breath test of .17 BAC and a collision with 3 cars wherein one of the occupants claimed injury.

We want to give credit to The Immigrant Legal Resource Center (“ILRC”) for its memo on this topic.

Matthew Ruff is a Torrance Criminal Defense Attorney with close to 30 years experience defending clients charged with DUI and other serious crimes.

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How To Avoid A DUI

Having practiced criminal defense for close to 30 years I have been asked numerous times what should I do if stopped for a DWI? I’ve never been one to give people advice on how to thwart the law, however, over time I have come to realize folks need this advice because we all have rights afforded to us by the constitution and we should all understand what those rights are and how they come into play in our daily lives and interaction with law enforcement.

First, let me say I do not condone drinking and driving, not because it is illegal per se but because on a professional level I have seen the grief caused when a police officer stops a person and smells alcohol on their breath. The best way to avoid a DUI is to refrain from drinking and then driving.

With that being said, here are 5 Tips to follow when being investigated for a DUI:

1. Be Courteous. Cops deal with rude people all day long and always appreciate it when a suspect is respectful and courteous.

2. Tell the officer right up front you do not want to participate in any field sobriety tests. These tests are unreliable and should not be taken. Let the officer know if he wants to place you under arrest you will not resist, however if not you are requesting you be able to proceed on your way.

3. If asked about drinking, respond you will provide your drivers license if requested but you are invoking your Constitutional Right to remain silent as to any questions concerning alleged criminal activity.

4. Get out of the car if requested. Officers are allowed to demand a driver exit his vehicle for officer safety reasons. Do so, but politely decline any field sobriety tests or questions pertaining to drinking.

5. If arrested you must submit to a chemical test or risk losing your license for 1 year. I recommend the breath test because it is the easiest to challenge. Advise the officer of any GERD or recent dental work.

I want to reiterate, drinking and then driving, even if you are below the legal limit, is a risky proposition because it subjects you to being detains and possibly being arrested. If you are arrested for DUI, Upon release contact a lawyer immediately so that important rights will not be lost.

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Are Field Sobriety Tests Reliable?

In California, as is the case in most states, Field Sobriety Tests are used to determine probable cause to arrest for driving under the influence. The “tests” are also used as substantive evidence of impairment for purposes of proving whether the driver was guilty of driving while “impaired” under the legal definition of “under the influence” in criminal court. But are these tests reliable?

To answer this question we have to first understand the origin of these tests. Back before per se laws were enacted the government had to prove the driver was actually impaired or affected by alcohol to the degree they could no longer drive a vehicle with the required caution characteristic of a sober driver under the same or similar circumstances. Cops were often scant in the evidence they had collected to prove this so the government embarked on a mission to provide law enforcement with tools they could use in the field to collect evidence of this nature. This was the birth of the SFST which stands for Standardized Field Sobriety Test. These exercises were created in a way that every police officer could administer the tests in the same manner whether they are in California or some other state. Thus, the name ”Standardized” Field Sobriety Test.

The government entity behind the tests was NHTSA, the National Highway Traffic Safety Administration. It sponsored studies that would back up and bolster the efficacy of the SFST. In early testing the SFSTs were found to be about 70-80 percent accurate in predicting blood alcohol levels above .10 which was the national BAC limit in most states at that time. The tests were comprised of a “3 test battery” consisting of the Horizontal Gaze Nystagmus (HGN), the Walk and Turn (WAT), and the One Leg Stand (OLS). What is important to understand is that the tests were never validated to measure impairment. Let me repeat that: The SFST’s were never designed to validate or measure impairment. They were validated only to predict or determine whether a subject was above the legal limit at the time, .10 BAC. [ See “Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent” NHTSA Study 1998]. The following is a direct quote from the study: ”…… SFST results help officers to make accurate DWI arrest decisions even though SFSTs do not directly measure driving impairment.” (pg. 28, Ibid.)

With all this being said, here is the crux of the issue. FST exercise results can be very incriminating when the observations show obvious signs of physical and mental impairment due to alcohol intoxication. However, police will often report the driver did not perform well when subtle ”clues” are observed. it is in these cases where the administration of the test must be in strict accordance with the training and standardized procedures. Particularly when it involves the HGN test, cops will oftentimes not conduct the test properly. As a DUI Attorney with over 30 years experience, I personally can attest to the fact these tests are done too fast and certain critical steps are often skipped.

When field sobriety testing is conducted in a manner that departs from established methods and procedures, the results are inherently unreliable. In an extensive study, the National Highway Traffic Safety Administration (“NHTSA”) evaluated field sobriety tests in terms of their utility in determining whether a subject’s blood-alcohol concentration is below or above the legal limit. The NHTSA concluded that field sobriety tests are an effective means of detecting legal intoxication “only when: the tests are administered in the prescribed, standardized manner,……the standardized clues are used to assess the suspect’s performance,….. [and] the standardized criteria are employed to interpret that performance.” National Highway Traffic Safety Administration ., U.S. Dept. of Transp., HS 178 R2/00, DWI Detection and Standardized Field Sobriety Testing, Student Manual (2000), at VIII-3. According to the NHTSA, “[i]f any one of the standardized field sobriety test elements is changed, the validity is compromised.” Id.

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Can Blood in the Mouth After an Accident Affect the Breathalyzer?

Top Torrance Criminal Lawyer
Matthew Ruff, Torrance Criminal Defense Attorney

It is not uncommon in some DUI accident cases for the driver to sustain injury to their face from the deployment of the airbag. The force of the bag hitting the facial area can be quite substantial causing cuts to the cheeks and sometimes cuts to the inside of a person’s mouth, gums and lips. Quite often these injuries are not severe enough to require medical attention. When the cut is serious enough to leak blood into the mouth these types of injuries can cause problems with the breath machine, here’s why.

Breath testing in drunk driving cases involves the collection of a sample of breath from the suspected impaired driver for the purpose of determining the ethanol content in their blood. In order to determine a person’s BAC level the machine is designed to capture a sample of deep lung air that originates from the subject’s alveolar region of the lungs. The theory behind this is that the alveolar air contains molecular levels of ethanol which can be extrapolated to determine their blood level by using a partition ratio of 2100 to 1. This extrapolation takes place inside the machine whereby the device literally multiplies the alcohol molecules 2100 times and reports it as a concentration of BAC. For example, .08% which is the legal limit in California. Alveolar refers to the smallest air sacs in the lungs and to that portion of the expired breath which is in equilibrium with respect to alcohol with the immediately adjacent pulmonary blood. In California a breath alcohol concentration shall be converted to an equivalent blood alcohol concentration by a calculation based on the relationship: the amount of alcohol in 2,100 milliliters of alveolar breath is equivalent to the amount of alcohol in 1 milliliter of blood.

With regard to the issue at hand, imagine a person who may have had a small amount to drink and subsequently that alcohol gets absorbed in the body and makes its way to the bloodstream. If the drinks were minimal, say a couple beers, the person’s BAC or blood alcohol level will be relatively low such as .03-.05 which is not above the legal limit. However, now assume that person gets in a collision and their lip is busted from the airbag explosion. Now lets further imagine they are arrested for driving under the influence because the officer smells the alcohol on their breath and they are off balance due to the impact of the accident. That person chooses a breath test and blows into the machine while small amounts of blood are leaking into the mouth.

The sample collected contains the alcohol in his blood which gets converted into a ”breath air” concentration by multiplying it 2100 times. This molecular level of alcohol in his blood now fools the breathalyzer into thinking it was alveolar air but it was not. As a result the reported concentration is now inflated artificially resulting in a false high level of BAC. Experts in the field have stated the problem this way: “the increase in alcohol molecules caused by blood leaking inside the mouth disrupts the equilibrium upon which the breath test is based and will thus lead to “overreported” results” (See People v. Ernsting, 2018 IL App (5th) 160330).

When a subject has fresh blood in his or her mouth and that blood contains even low levels of alcohol, the results of the breath test is not reliable within a reasonable degree of scientific certainty. The problem of mouth blood that contains molecular levels of ethanol is that it also arguably violates Title 17 which governs breath testing in the state. Most DUI Attorneys agree that if the sample collected is contaminated by sources that do not originate from the deep recesses of the lungs then the sample is not ”essentially alveolar air” which is what the Regulations require. Moreover, some states prohibit ”foreign substances” in the mouth during the testing process, in many of those states blood in the mouth qualifies as a foreign substance so as to invalidate the results.

If you or someone you know has been in an accident, sustained a mouth area injury and was charged with DUI and believe the breath test was wrong, call Torrance Criminal Defense Attorney Matthew Ruff for a consultation and discussion about your case.

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