Articles Posted in Chemical Testing

Do you know whether the machine used to administer the breath test in your DUI case was properly certified? Most states, including Illinois, have regulations to ensure the accuracy of breath test machines. If the state relies on results from an improperly certified breath test machine in prosecuting a DUI case against you, it can greatly affect the outcome of your case and may provide grounds for avoiding or overturning a conviction.

Recently, the impact of certification issues was felt by prosecutors throughout Nebraska, when hundreds of DUI cases were affected when it was revealed the machines used for official breath tests were improperly certified. While Nebraska police officers administer preliminary breath tests when they suspect a person is driving under the influence of alcohol, many DUI cases rely on results from official breath test machines, which are usually in jails. State regulations require the official breath test machines to be tested regularly to ensure accuracy.

While defending a DUI charge against a client, a Nebraska criminal defense attorney noticed discrepancies in certifications for the official breath test machines. His discovery prompted an investigation which revealed that the individual responsible for testing and certifying the accuracy of breath test machines throughout the state had not actually tested the machines. Subsequently, all DUI cases relying on results from the official breath tests were affected. In cases that relied solely on the official breath tests, prosecutors lacked any evidence with which to convict the defendants.  Moreover, the lack of certification greatly impacted the prosecution’s ability to prove cases in which it was alleged the defendant had committed an aggravated DUI, which requires proof the defendant had a blood alcohol concentration higher than 0.15 percent in Nebraska.

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After failing field sobriety tests, an Illinois defendant was arrested for DUI. At the police station, an officer read the defendant the required admonitions, and the defendant submitted to a breathalyzer test, showing his blood alcohol content was within the legal limit. Then, the officer requested that the defendant submit to blood or urine testing. The defendant refused, and his driver’s license was suspended. He filed a petition to rescind the suspension, which the trial court denied. He appealed, arguing that his petition should have been granted because the officers (1) lacked a reasonable suspicion to request blood or urine testing and (2) failed to issue him a second warning before requesting blood or urine testing. In a case relevant to all Illinois DUI law, this fall, the Illinois Court of Appeals for the Third District affirmed.

At the hearing, the Shorewood police officer testified that while on patrol at around 1:12 a.m. on April 4, 2016, he observed the defendant commit multiple lane violations. The defendant’s vehicle veered toward his patrol car, crossed over the double yellow line three times, veered into the painted median twice, and veered toward the opposite lane of traffic. After observing the defendant commit “approximately five lane violations,” the officer effectuated a traffic stop.

The officer approached and asked the defendant for his license. In attempting to retrieve his license, the defendant’s hands slipped multiple times, and before handing the license to the officer, the defendant dropped it in his lap. He also dropped his cell phone in his lap. The officer asked the defendant if he had drunk alcohol or was on any medication, and the defendant answered in the negative to both.

The Fourth Amendment protects U.S. residents from unreasonable governmental searches and seizures. This fall, the Illinois Supreme Court was tasked with deciding whether an alleged hospital blood draw violated an Illinois DUI defendant’s constitutional rights.

The defendant was charged with DUI following a motorcycle accident. He filed a motion to suppress the results of blood-alcohol testing on the ground that the blood draw performed at the hospital after his accident violated the Fourth Amendment. Specifically, he argued that the police officers forcibly placed him in an ambulance, despite his refusal of medical treatment. The motion further argued that the blood draw performed at the hospital was a search conducted without a warrant, without consent, and without exigent circumstances. The trial court granted defendant’s motion, and the appeals court affirmed. The state petitioned to the Illinois Supreme Court, which accepted the appeal and reversed.

The state argued on appeal to the Illinois Supreme Court that the lower court erred in holding that the defendant established a prima facie case that the alleged blood draw was an unreasonable search. The state high court agreed.

The Fifth Amendment to the United States Constitution protects Illinois DUI defendants and those in other states from self-incrimination. The Georgia Constitution’s protection is broader. It applies to more than just testimony, also applying to coercive acts that generate incriminating evidence. This fall, the Georgia Supreme Court had to decide whether the Georgia Constitution‘s protection prohibited police from forcing someone suspected of DUI to be breathalyzed.

The defendant was convicted of DUI and related traffic offenses. He appealed. He challenged the lower court’s denial of his motion to suppress the results of a breath test. He argued that Georgia’s implied consent notice statute was unconstitutional. He further contended that his state constitutional right against self–incrimination was violated when law enforcement asked to breathalyze him, and the deceitful language of the implied consent notice was coercive. For these reasons, the defendant argued that the admission of his breath test results violated his constitutional rights.

The court agreed with the defendant that taking a breath test implicates a Georgia resident’s state constitutional right against compelled self–incrimination, and it overruled precedent ruling otherwise. The court reasoned that the relevant portion of the Georgia Constitution prohibits compelling a suspect to perform an act producing incriminating evidence, but it does not ban compelling a suspect to be present so that another person may perform such an act.  And, as with other constitutional rights, a suspect may consent to act in a way the statute would prevent the state from compelling.