Breathalyzer Test Law

Written by shari caudill
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Breathalyzer Test Law
Refusing to take a breathalyzer test after drinking and driving can be serious. (martini and keys image by William Berry from Fotolia.com)

The use of breathalyzer tests to determine blood alcohol levels has become the standard testing method used by law enforcement due to its cost effectiveness. Blood and urine tests cost more due to the fact a qualified medical professional has to draw the blood and it is analysed in a lab. Suspects typically prefer a breath test as it is less invasive and intrusive. A breathalyzer attempts to measure the blood alcohol content, also known as BAC, that is present in a suspect's breath. Portable units are now considered accurate enough to be used as presumptive evidence in a driving while under the influence of drugs or alcohol (DUI) court case. According to Webster's New World Law Dictionary, presumptive evidence is "evidence that is treated as sufficient for a guilty verdict unless contradicted and outweighed by presentation of rebuttal evidence." In other words, it shifts the burden of proof to the suspect. Some law enforcement agencies still prefer to use a larger, more accurate unit that is kept at the department's facilities. Not all states consider the breathalyzer to be evidence in criminal cases. The "the taking of or refusal to submit to a preliminary breath test is not admissible in evidence in any court action" in Maryland according to Section 16-205.2 of the state's code.

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What is Over the Limit?

In most states, if you have a BAC of 0.08 per cent or more and you choose to operate any type of motorised vehicle or 0.04 for operators of a commercial vehicle, you can be arrested for DUI. According to the Ohio Revised Code (4511.19), BAC of 0.08 means a "concentration of eight-hundredths of one gram or more but less than 17-hundredths of one gram by weight of alcohol per 210 litres of the person's breath." In other states, such as Minnesota and Pennsylvania, the BAC is 0.10.

Refusing a Breathalyzer Test Can Have Serious Repercussions

In Florida, Maryland, Pennsylvania, Ohio, Wisconsin, Illinois, Oregon, and other states, officers are instructed to immediately seize the license and arrest a driver who refuses to take a breathalyzer test. The driver's license is suspended from 90 days to one year depending on the statutes of the state. Repeated offences result in longer suspensions and can lead to permanent revocation. These suspensions are not related to the criminal court case that could result in a longer suspension. The outcome of the criminal case, however, does not affect the automatic suspension by the state's bureau or department of motor vehicles.

Suspension is not the only penalty facing a driver who refuses the take the test. He also faces court costs and fines. According to Chapter 813, Section 813.095 of the Oregon code, "refusal to take a breath test is a traffic offence punishable by a fine of at least £325 and not more than £650. The fine described in this section is in addition to other consequences prescribed by the law for refusal to take a breath test."

Not all states will immediately arrest a DUI suspect who refuses to take a breathalyzer. In Alaska and New York, drivers must first refuse to take a chemical test.

Implied Consent: Refusal Doesn't Stop Testing

If a driver is operating a motor vehicle on a public roadway in Ohio, he "is deemed to have given consent" for officers to conduct a test of breath, blood or urine if he is arrested or if the officer has "reasonable grounds."

As a result of implied consent laws, states like Ohio, Alabama, Wisconsin, Minnesota, Illinois, Arizona, California, and Alaska, law enforcement officers can forcefully conduct chemical testing if a driver refuses to take a breathalyzer test. According to the Ohio Revised Code, the officer "may employ whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person's whole blood or blood serum or plasma."

States use varying legal language for their breathalyzer tests. According to the California Vehicle Code, refusal to take a "Preliminary Alcohol Screening (PAS) test (e.g., preliminary breath test) will result in a license suspension for one year."

Challenges Are Mostly Unsuccessful

In State v. Salisbury, {330 S.C. 250, 498 S.E.2d 655 (S.C.App.1998)}, the South Carolina Supreme Court judges ruled:

"Prior to admitting the results of a breathalyzer test, the state may be required to prove: (1) the machine was in proper working order at the time of the test; (2) the correct chemicals had been used; (3) the accused was not allowed to put anything in his mouth for 20 minutes prior to the test (4) the test was administered by a qualified person in the proper manner."

"The testimony of an operator that he or she had run a simulator test immediately before the actual test, and that the breathalyzer machine gave a reading equal to the per cent of alcohol in the simulator solution, is sufficient to establish, prima facie*, that the machine was working properly and that the correct chemicals had been used."

*According to Merriam-Webster's Dictionary of Law, prima facie evidence means "on first appearance absent other information or evidence; sufficient to establish a fact or case unless disproved."

In a separate case, the State of South Carolina against James Eugene Huntley, Justice Pleicones of the Supreme Court ruled, "I believe that the failure to comply with the clear and unambiguous statutory language mandating a simulator test be run using "an eight one-hundredths of 1 per cent" alcohol solution bars the use of the breath test results at trial. State v. Breech, {308 S.C. 356, 417 S.E.2d 873} (1992)(DUI statute strictly construed in favour of defendant). "

The other judges, however, ruled in favour of reversing the order of the trial judge that suppressed the breathalyzer results and the case was overturned.

Agencies Use Approved Equipment

The National Highway Traffic Safety Administration is responsible for approving the testing equipment and the testing procedures used by law enforcement agencies for the purpose of breath testing. Updated approval lists are available via the Federal Register.

According to to Volume 66, Number 87 of the Federal Register, the products that were approved as of 2001 include systems manufactured by Akers Laboratories, Inc., Alco Check International, Chematics, Inc., Guth Laboratories, Inc., Han International Co., Ltd., OraSure Technologies, Inc.(Formerly STC Technologies, Inc.), PAS Systems International, Inc., Repco Marketing, Inc., Roche Diagnostic Systems, and STC Technologies, Inc.

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