What kind of test did you take !

Breath Test        Blood Test          PAS Test                 Refusal

Breath Test 

Breath testing for "BAC" or blood alcohol concentration is usually the most damning evidence that an individual accused of DUI will face. In California it is used to support a separate DUI offense for BAC above .08 %. Frequently breath testing is used at the scene of the stop and arrest to justify the arrest.

 Breath tests are not infallible. In fact, most people would be shocked to learn of the numerous defects and deficiencies inherent in using breath tests to accurately report an individuals true/real BAC. A police officers failure to conduct a proper 15 minute observation before the test can be crucial; it is required by law, the manufacturer of the breath machine, and good science. Machine errors and operator errors do exist, and when discovered can have a tremendous impact in fighting a DUI conviction.

Challenges against the use of breath test results are numerous and if successful may result in dismissal of the DUI charge, reduction to a less serious offense, or winning against a license suspension. It is apparent that an Attorney skilled in the workings of breath testing devices has a serious advantage in ability to defend against the DUI charge .Mr. Moore employs the use of extensive discovery from the crime laboratory. Calibration, maintenance, and repair records can reveal startling problems which violate scientific standards and state law requirements. 

Some individuals are not proper candidates for breath testing for BAC. Did you know that contamination and inaccurate breath results occur in cases where the person tested has certain medical or physical conditions, including: Reflux, heartburn, burping, belching, regurgitation, GIRD (gastro-intestinal-reflux-disease). A police officers failure to conduct a proper 15 minute observation before the test can be crucial; it is required by law, the manufacturer of the breath machine, and good science. Machine errors and operator errors do exist, and when discovered can have a tremendous impact in fighting a DUI conviction.

Breath tests are dangerously false if used on anyone suffering from Reflux, or GERD, or indigestion, or "heartburn" Scientific Defense should be explored in all these situations:
MEDLINEplus Gastroesophageal Reflux-Hiatal Hernia  
click on the following link to see more in Mr. Moore's
Legal Defenses against a DUI arrest and Admin Per Se Drivers license suspension

Mr. Moore has almost  20 years of Trial experience in challenging breath tests in Court. Additionally, he is one of the very few DUI defense lawyers in California and the United States to become certified in breath testing. He has been winning these cases in Jury Trial for years. Only a few Attorneys in the entire nation, dedicated to winning DUI, cases have ever achieved this  expertise. Do you think this might make a difference? Mr. Moore knows. 

 13 Documents To Request When Preparing A Defense (Breath Test)  

How Breathalyzers Work - http://www.howstuffworks.com/breathalyzer.htm  
Informative article examines the scientific principles and technology behind breath alcohol testing devices.

Breath Testing: How it is supposed to work    

Evolving from work started in the early 1970s, NHTSA maintains up-to-date model specifications for evidential breath test devices, as well as calibrating units for evidential breath testers, and alcohol screening devices. As part of this program, NHTSA updates Conforming Products Lists (CPLs) for each class of devices (evidential breath testers, alcohol screening devices, and calibrating units for evidential breath testers). Other laboratory research on alcohol measurement issues (e.g., ignition interlock devices, saliva-alcohol test devices, etc.) are periodically undertaken when resources allow. This program also supports the DOT-wide workplace alcohol testing program. To obtain a copy, please contact NHTSA's Media and Marketing Division via fax at (202) 493-2062, or visit the NHTSA website at www.nhtsa.dot.gov.

Alveolar breath air is deep lung air. Since breath testing instruments are intended to measure indirectly the concentration of alcohol in the blood, it is essential for accuracy that the breath sample captured by the instrument for analysis be representative of the air in the alveoli of the lung, because it is in the alveoli that the 2100:1 equilibrium ratio between alcohol in the breath and alcohol in the blood occurs.

Infrared Instruments      Infra-red Detection     http://library.thinkquest.org/17049/gather/cgi-bin/document_get.cgi?path=/Toxicology/10methods/15infra 

Infrared breath measuring instruments operate on the principle that each chemical compound has unique infrared energy absorption characteristics. Ethyl alcohol absorbs energy in the 3.42 micron region of the infrared spectrum. The amount of alcohol contained in a sample can be calculated by observing energy loss when a known energy is applied to the sample. In the infrared devices, infrared energy is projected through a breath sample. A photo-detector identifies a decrease in wave amplitude caused by the absorption of energy by the alcohol. The amount of energy absorbed is equal to the breath alcohol concentration. The greater the alcohol concentration, the lower the wave amplitude. A computer on the instrument determines the breath alcohol content based upon the amount of energy loss, and then applies the 2100:1 conversion ratio to provide a digital readout of the suspect's blood alcohol content. Infra-red Detection     Infra-red Detection
Blood Test

Blood testing for "BAC" or blood alcohol concentration is usually the most damning evidence that an individual accused of DUI will face. In California it is used to support a separate DUI offense for BAC above .08 %. Blood testing is considered the most accurate test.

 However, challenges to accuracy are available and if successful may result in dismissal of the DUI charge, reduction to a less serious offense, or winning against a license suspension. Mr. Moore employs the use of extensive discovery from the crime laboratory. Gas chromatograph calibration, maintenance, and repair records can reveal startling problems which violate scientific standards and state law requirements.

  10 Documents To Request When Preparing A Defense (Blood Test)

Gas Chromatography

Gas chromatography was, and still is, used to identify exactly how much alcohol is present in the blood or urine of a suspect driver. Because it is very accurate, results can be used as evidence in a court of law. It`s applications are not only limited to the measuring of BAC, gas chromatography is also ideal for the detection of many other drugs and substances. This technique works by separating gases and liquids into their elemental components. The process is relatively quick, but in the case of BAC measurement, is still a tedious and routine job.

The sample is injected into a heated reaction chamber where it will vaporise (if it is not already a gas) then moved by an inert carrier gas through the stationary phase column which is a long tube made of either stainless steel or glass that has been tightly wound into a coil. This column may be up to six metres (19.7ft) long and only 3mm (0.12 in) in diameter! The elements in the sample will separate out during the passage through the tube and at the end of the column, will pass through a detection device. Each component generates its own individual electrical impulses which are recorded as a chromatogram of response (vertical axis) versus time (horizontal axis). So a chromatogram usually turns out as a number of uneven peaks which can be identified by comparing the shape and time they came out with a reference chromatogram or a control sample. Gas Chromatography  http://library.thinkquest.org/17049/gather/cgi-bin/document_get.cgi?path=/Toxicology/10methods/05gas
Mr. Moore routinely demands a blood re-test at an independent lab for BAC alcohol level and proper preservation. A re-test which reports a significantly different BAC may result in dismissal of the DUI charge, reduction to a less serious offense, or winning against a license suspension.

  In appropriate cases the blood sample can be tested for blood type and even DNA matching. And ... what happens if the government lab fails to produce a portion of the sample for re-test? The blood test results should not be admitted against you. Mr. Moore regularly consults with qualified experts regarding individual cases to determine whether the accuracy of the reported BAC alcohol level is reliable or not. Was your blood taken by a licensed individual? The law requires it ,but unlicensed persons have currently been discovered. Was your sample properly preserved by chemical preservatives? Was your sample properly refrigerated? Preservation is crucial because of the specter of fermentation which could increase the alcohol level in the sample to be tested. Amazing as it seems, some jurisdictions don't regularly refrigerate stored samples immediately after a blood draw. e.g. a sample is left in a police locker for days before being transported to the lab for analysis. Is the "chain of Custody of the sample properly documented? Did you know that these crime labs routinely analyze multiple samples of different people in the same time frame? Did a qualified licensed lab person do the analysis in the presence of a qualified Supervisor? Was the Gas Chromatograph device properly calibrated, maintained, repaired according to State law and the terms of the lab's license? What do the lab records say? Were the records prepared properly to document all that is required by law and science? Can the lab provide them? How do you know? It is unwise to assume this vital piece of evidence was generated and documented in a perfect fashion by the government lab and employees.                                                                                         Blood tests are always taken some time after the driving and alcohol levels rise and lower over time . What can this mean in your case? How do you find out?

Mr. Moore has almost  20 years of Trial experience in challenging blood tests in Court. He is one of only a few that have ever successfully won blood test cases in Jury Trial. Do you think this might make a difference? Mr. Moore knows. 

 

Refusal to submit to a breath or blood test

Look here in the future for information about refusals. Our apologies for the delay. You may call Mr. Moore's office to schedule an interview and discuss this issue. 

                                12 Documents To Request When Preparing A Defense (Refusal)

PAS roadside breath test   (preliminary alcohol screen test)

Preliminary Breath Testing Instruments     ( PAS : Preliminary Alcohol Screening device )

PBT instruments are portable instruments for the purpose of BAC screening as part of the pre-arrest field testing. The suspect driver blows for several seconds through a plastic or glass tube, and the PBT provides an instantaneous determination of blood alcohol content.

In most jurisdictions, the legal basis for the use of these instruments is contained in the implied consent laws. While results of a PBT generally are not admissible as evidence of DWI, they do provide officers with additional objective information to establish probable cause for arrest and further chemical testing. They also help to detect persons who may be suffering from an illness or injury such as diabetes or head injury and are in need of chemical treatment, but would otherwise be mistaken for an intoxicated person. There are essentially three types of PBTs: electro-chemical, semi-conductor, and disposable chemical.

In electro-chemical PBTs, alcohol in the breath is absorbed into a fuel cell where it is oxidized, producing electrical current. The higher the alcohol content of the breath, the greater the current output of the fuel cell. By measuring the current produced, the instrument determines the breath alcohol content, and the BAC conversion is displayed with the aid of a computer chip. In semi-conductor PBTs, alcohol increases the electrical output of the semi-conductor. By measuring the voltage output, the breath alcohol content can be determined and the BAC conversion is displayed.

Disposable chemical PBTs are glass or plastic tubes containing a measured amount of the chemical, which is reactive with alcohol. As the suspect exhales through the tube, alcohol contained in the breath reacts with the chemical contained within. The greater the breath alcohol content, the greater the chemical reaction observed.

 

Look here in the future for information about PAS. You may call Mr. Moore's office to schedule an interview and discuss this issue. 

Field Sobriety Tests 

Field Validation of Standardized Field Sobriety Tests (SFSTs) at Lower BAC Limits. Standardized Field Sobriety Tests (SFSTs), used routinely by law enforcement since the mid-1980s, were originally validated at the .10 BAC level. Now that many states have lowered their BAC limit to .08 BAC, there was a need
to determine whether these standardized tests are also appropriate for use at the new, lower BAC limit. This report summarizes field findings. SFST materials are only available to law enforcement.
DOT HS 808 839 (Order # 7P0110)                                                                                                                   

Standardized Field Sobriety Testing (SFST) and Drug Recognition Expert (DRE) Training Programs. These training programs are provided to states and communities for law enforcement officers. A training curriculum is available for each program to train instructors. NHTSA and IACP have developed standards for the DRE and SFST programs. Available through state highway safety offices or through NHTSA regional offices.

FirstGov.gov - Official website for searching the U.S. Government - Search Results
     HGN    HORIZONTAL GAZE NYSTAGMUS STATE CASE LAW SUMMARY  

Standardized Field Sobriety Testing

The Standardized Field Sobriety Test (SFST) is a battery of three tests administered and evaluated in a standardized manner to obtain validated indicators of impairment and establish probable cause for arrest. These tests were developed as a result of research sponsored by the National Highway Traffic Safety Administration (NHTSA) and conducted by the Southern California Research Institute. A formal program of training was developed and is available through NHTSA to help police officers become more skillful at detecting DWI suspects, describing the behavior of these suspects, and presenting effective testimony in court. Formal administration and accreditation of the program is provided through IACP. The three tests of the SFST are:

  • the horizontal gaze nystagmus (HGN)
  • the walk-and-turn
  • the one-leg stand.

These tests are administered systematically and are evaluated according to measured responses of the suspect.

HGN Testing
Horizontal gaze nystagmus is an involuntary jerking of the eyeball which occurs naturally as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles. An alcohol-impaired person will also often have difficulty smoothly tracking a moving object. In the HGN test, the officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or small flashlight, horizontally with his eyes. The examiner looks for three indicators of impairment in each eye: if the eye cannot follow a moving object smoothly, if jerking is distinct when the eye is at maximum deviation, and if the angle of onset of jerking is within 45 degrees of center. If, between the two eyes, four or more clues appear, the suspect likely has a BAC of 0.10 or greater. NHTSA research indicates that this test allows proper classification of approximately 77 percent of suspects. HGN may also indicate consumption of seizure medications, phencyclidine, a variety of inhalants, barbiturates, and other depressants.

Divided Attention Testing
The walk-and-turn test and one-leg stand test are “divided attention” tests that are easily performed by most sober people. They require a suspect to listen to and follow instructions while performing simple physical movements. Impaired persons have difficulty with tasks requiring their attention to be divided between simple mental and physical exercises.

In the walk-and-turn test, the subject is directed to take nine steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction. The examiner looks for seven indicators of impairment: if the suspect cannot keep balance while listening to the instructions, begins before the instructions are finished, stops while walking to regain balance, does not touch heel-to-toe, uses arms to balance, loses balance while turning, or takes an incorrect number of steps. NHTSA research indicates that 68 percent of individuals who exhibit two or more indicators in the performance of the test will have a BAC of 0.10 or greater. In the one-leg stand test, the suspect is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (One thousand-one, one thousand-two, etc.) until told to put the foot down. The officer times the subject for a 30 seconds. The officer looks for four indicators of impairment, including swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down. NHTSA research indicates that 65 percent of individuals who exhibit two or more such indicators in the performance of the test will have a BAC of 0.10 of greater. The effectiveness of SFST in court testimony and evidence depends upon the cumulative total of impairment indicators provided by the three-test battery. The greater the number of indicators, the more convincing the testimony. Because SFST is administered according to national standards and is supported by significant research, it has greater credibility than mere subjective testimony.

Alternative Testing Methods

Sometimes, an officer will encounter a disabled driver who cannot perform the SFST. In such cases, some other battery of tests such as counting aloud, reciting the alphabet, or finger dexterity tests may be administered. Several appellate court decisions have indicated that, if you administer a test that requires the subject to respond orally in other than a routine information-giving fashion, such as requiring them to indicate the date of their sixth birthday, and if they are in custody at the time, you should administer the Miranda warning first, because you are seeking information from them that is testimonial or communicative in nature.

Field Validation of Standardized Field Sobriety Tests (SFSTs) at Lower BAC Limits

Standardized Field Sobriety Tests (SFSTs), used routinely by law enforcement since the mid-1980s, were originally validated at the .10 BAC level. Now that many states have lowered their BAC limit to .08 BAC, there was a need to determine whether these standardized tests are also appropriate for use at the new, lower BAC limit. This report summarizes field findings. SFST materials are only available to law enforcement.
DOT HS 808 839 (Order # 7P0110)

 

Computing a BAC Estimate:     How alcohol levels BAC are calculated

 http://www.nhtsa.dot.gov/people/injury/alcohol/bacreport.html

Calculate your estimated BAC based on what and how much you have had to drink.The results that are generated are rough estimates of an average healthy person's BAC assuming typical beverage sizes, recipes and alcohol content.     The Drink Wheel On-Line BrAC Calculator   http://www.intox.com/wheel/drinkwheel.asp 
A person's actual BAC is dependent on many complex factors, including their physical condition (body composition, health etc...) and what they have recently ingested (including food, water, medications and other drugs). This site includes a more detailed discussion of the Pharmacology and Disposition of alcohol in humans.

General guidelines:  what usually happens in an arrest for drunk driving. 

Traffic Stop ---> FSTs ---> PAS ---> Arrest ---> Breath/Blood BAC ---> APS temp license

NHTSA study detection guide describes a set of behaviors that can be used by officers to detect motorists who are likely to be driving while impaired . 
"Likely"?      35% ?      50% ?     65% ?      70% ?  "Probability" ?
These don't sound like BEYOND A REASONABLE DOUBT do they?

The DWI Detection Guide

Explanations of the 24 driving cues

Summary

A description of post-stop cues that are predictive of DWI

The driving behaviors identified by the officers are presented in the following four categories:

1) Problems in maintaining proper lane position,

2 ) Speed and braking problems,

3) Vigilance problems, and

4) Judgment problems.

The cues presented in these categories predict that a driver is DWI at least 35 percent of the time. For example, if you observe a driver to be weaving or weaving across lane lines, the probability of DWI is more than .50, or 50 percent. However, if you observe either of the weaving cues and any other cue listed in this booklet, the probability of DWI jumps to at least .65, or 65 percent. Observing any two cues other than weaving indicates a probability of DWI of at least 50 percent, although some cues, such as swerving, accelerating for no reason, and driving on other than the designated roadway, have single-cue probabilities greater than 70 percent. Generally, the probability of DWI increases substantially when a driver exhibits more than one of the cues.

The research suggests that these training materials will be helpful to officers in:

If you are pulled over and the officer suspects you of driving under the influence, an officer usually will ask you to submit to a series of "field sobriety tests" (FST). If you fail, (and almost everybody does fail) you will be arrested and taken to a station, and asked to take a chemical test for your blood alcohol content (BAC). You should be given the choice of taking a blood or breath,  If you refuse to take this test, or don't complete the test, your license will be subject to a one year suspension. 

If the test results show you to have a BAC of .08 percent or more, your license will be taken away on the spot and will be subject to a four month suspension. You will be given a 30-day temporary driving permit. You are given 30 days to request a hearing. However,  you want to delay the suspension past the 30 day temp license you are only  allowed 10 days to request an APS administrative hearing to contest the suspension.   Essentially, you want your lawyer to make the DMV prove it's case and if not avoid the suspension. If you wait until after the 10 day limit your license will be suspended in 30 days. If this is a second offense, your license will be suspended for one year. The DMV will charge a fee of up to $100 to re-issue the driving privilege.

California has some of the toughest drunk driving laws in the country. If you've been convicted of driving under the influence (DUI), the disruption of your day-to-day life and to your pocketbook can be monumental.

California's DUI laws are complex, and the enforcement and penalties of these laws can vary greatly from jurisdiction to jurisdiction. Here are some general guidelines about what usually happens in a drunk driving arrest.

Below are links to pages containing examples of documents that to request when preparing for a defense. Choose the appropriate links to your (BAC)  test

10 Documents To Request When Preparing A Defense (Blood Test)

13 Documents To Request When Preparing A Defense (Breath Test)


12 Documents To Request When Preparing A Defense (Refusal)