[The following information is provided by our Mississippi DUI Attorneys with
the express permission of William C. Head and Headlines Marketing,
Atlanta, GA copyright 2004]
OVERVIEW.
For over 22 years, drunk driving laws have been getting tougher
and tougher. In virtually every state, the legislative branch
ANNUALLY passes new laws, or increases punishment for existing
laws. Why? It is due to the relentless pursuit of
"prohibition" by MADD in our state legislatures each year.
Once the legislative branch "acts" in response to the MADD pressure
(now fully supported by the Federal Government through NHTSA)
the trial courts and appellate courts fall in line and mete out
severe punishment, as directed by the legislature. Our jails
are full to capacity, with many jail cells housing three to four
times the number of prisoners they were designed to accommodate.
In 1995, Georgia changed its DUI laws THREE times in less than
9 months! The trend is for the laws to get more Draconian
each year, and (in doing so) we lose more rights as citizens.
MUST I GIVE A TEST?
When a driver is suspected of DUI
/ DWI / OUI / OWI (or however your state has opted
to abbreviate it), an officer is given the statutory "option"
of asking that you submit to a chemical test of your breath (most
common type test), or blood, or urine, OR ALL THREE (in some states,
like Georgia). The majority of states permit a person to
REFUSE to submit to testing. In most cases, the police officer
will have asked you to first perform field
sobriety tests, but these field evaluations ARE
NOT mandatory. In others, (e.g., South Carolina),
the officer suspecting alcohol as the impairing substance can
only ask for breath, barring a vehicular homicide or other extenuation
circumstances. In others, (e.g., California), the officer
must ask for breath, but verbally advise you that the California
breath test does not provide a sample for later independent testing
(by you or your legal counsel), so you can OPT for a blood test,
if you so desire. Others offer you the chance to be tested
"the easy way", by blowing into a breath machine, and if you try
to resist, you can be PHYSICALLY wrestled to the ground, beaten,
choked or even strapped to a table or gurney so that blood can
be drawn from your body or urine can be extracted through a catheter
inserted in your penis or urethra. Yes, we are talking about
a garden-variety, misdemeanor DUI / DWI case in the United States
of America, without serious bodily injury or death. Yes,
we are talking about these unbelievable acts being LEGALLY sanctioned
by some of our more pathetic appellate courts across America.
IMPLIED
CONSENT LAWS AND TYPES OF TESTS OFFERED. This "option"
for officers to ask (DEMAND in some jurisdictions, such as Nevada
and Michigan) that you submit to EVIDENTIAL breath
testing or EVIDENTIAL blood
testing (i.e., the police PLAN to use it against
you in court to convict you) is called "implied consent" or "informed
consent". The idea developed from a legal fiction whereby
the government agreed that if a person opted to drive on the state's
roadways, and thereby obtained the "benefit" of this public expenditure
of money, then the person also IMPLIEDLY agreed to submit to giving
a sample to the police so that analysis for alcohol (and drugs)
can be performed.
In the last decade, some
state governments began to actually ADD this printed language
to the driver's license application forms REQUIRED of its licensed
drivers, effectively FORCING the person to agree in writing to
give breath, blood or urine at the request of a law enforcement
officer who may suspect you of driving while impaired. In
law school, we were taught that this is the classic ADHESION contract,
whereby one party (without any real bargaining position, was FORCED
to sign an unfair agreement when no viable option---EXCEPT to
sign---exists.
PENALTIES
FOR "REFUSAL". In the states where Gestapo-type
brutality is NOT permitted to be used to force a test from your
body, the usual "penalty" for not taking a "chemical test" (i.e.,
a blood, breath or urine test, to determine what "chemicals" are
in your body) is most commonly LOSS OF LICENSE [or, loss of DRIVING
PRIVILEGES in that state if your are licensed by another
state at the time of your arrest]. A few states have passed
additional laws penalizing the driver who refuses to be tested
with monetary penalties or other similar sanctions, but there
are limits to what punishment can be exacted against a person
who chooses NOT to incriminate himself/herself. The length
of a suspension/revocation depends on state law, and varies widely.
Some states allow a "work" permit after a refusal; others (i.e.,
Georgia) do not.
PENALTIES
FOR TAKING THE TEST, BUT BEING "OVER" THE LIMIT.
All states now have "administrative" license suspension (or revocation)
laws. Lawyers, police officers and your DMV
/ DPS / MVR / BMV office call these "ALS"
or "ALR".
The administrative suspension DIFFERS from a suspension for a
criminal conviction, and is generally codified under a different
part of state law. In most states, the administrative "action"
taken against your license is ADDITIONAL to any action that may
be taken after conviction occurs. Clearly, this is double
punishment, but our highest courts have universally said, "That's
okay, if the legislature wants to do it that way, because driving
is a privilege, not a "right". As with "refusal" penalties,
the length of a suspension/revocation depends on state law, and
varies widely. Some states (i.e., Georgia, but only for
first offenders in five years) allow a "work" permit after a refusal;
others do not.
HAVE
MY RIGHTS BEEN VIOLATED? Because the laws vary widely
from state to state, reference to your
own state's laws it is critical [in every DUI /
DWI / OUI / OWI prosecution] to determine whether by the arresting
(or testing) officers violated any of your legal rights.
Some state's appellate courts have been very liberal in upholding
the strict mandates of their "implied consent" statutes (i.e.,
either the officer followed all the rules or the test would be
subject to being EXCLUDED from the State's evidence at trial).
The appellate courts of other states have turned a blind eye toward
these statutes, almost always finding a way to UPHOLD a conviction
(or to reject a pre-trial challenge seeking to suppress the test).
If your legal rights have been violated, both the criminal case
AND the ALR / ALS (administrative action against your license
for having taken a test and being over the state's BAC limit)
may be subject to being dismissed (or "rescinded"- i.e., lifted)
so that no suspension or revocation can be maintained against
your driving privileges.
HISTORY OF BREATH TESTING
DEVICES. Breath testing devices in America have
been in use since the early 1940's, although the first ones were
crude, highly inaccurate pieces of equipment. They were
also subject to extreme operator error, if not operated correctly.
Robert Borkenstein of Indiana patented the best of the early devices
in the early 1950's. The device was called "The Breathalyzer®",
and was still in use in some states (i.e., New Jersey and South
Carolina) up until the late 1990's.
MACHINES
BEING USED IN THE U.S.A. Today, if you submit to
BREATH TESTING in the United States, you will almost certainly
be tested on one of these "infrared" machines (or "instruments",
as police officers are trained to refer to them):
Intoxilyzer® 5000 or
1400 [portable unit for Batmobile use] series (America's most
widely used breath test machine)
BAC
Datamaster® (America's second most common breath machine)
Intoximeter®
EC-IR (Used in a handful of states)
Draeger®
7410 (German manufacturer that has placed its machine in about
6 states, so far)
Each
of these devices has its strengths and weaknesses, and can be
attacked in court by a knowledgeable criminal defense TRIAL attorney
specially trained in fighting drunk driving cases. All of
them utilize INFRARED LIGHT passing through a sample chamber (where
the breath is passing through) and/or electrically charged "plates"
(fuel cell devices) which attract and "count" ions of alcohol
as their "measuring" tool. Like any "machine", all breath
testing devices are subject to variance, from systematic error,
random causes, or mere sampling variability endemic to all breath
testing devices.
A troubling
trend seems to be emerging in a few states. Handheld fuel
cell devices (which run on batteries) are being allowed for EVIDENTIAL
testing purposes, not just preliminary screening for alcohol.
The devices that come equipped with an on-board printer CAN provide
an evidential result (i.e., a piece of paper bearing the time,
quantity and other data to introduce as an exhibit in court).
However, the likelihood that these devices could generate a flawed
and unreliable test result is greater than if testing was conducted
on a stable, desktop infrared machine like those outlined above.
ALL
TESTS ARE SUBJECT TO LEGAL CHALLENGE. Regardless
of whether the result CLAIMED by the state is close to the state's
legal limit (e.g., a 0.083 result in a state having a legal limit
of 0.080) or DOUBLE (or more) the maximum limit for you state,
a trained trial attorney MAY be able to find a viable explanation
about why the machine's results cannot be trusted.
IF
IT AIN'T GOOD ENOUGH FOR ALABAMA . .In the late 1990's,
the State of Alabama's own "state lab" conducted experiments on
the Intoxilyzer® 5000 devices then in use across that state.
Their findings, basically showing that substantial error (plus
or minus 25%) in the "readings" could falsely accuse a driver
who had an elevated breath temperature (due to a variety of causes)
led to Alabama abandoning the Intoxilyzer® 5000, and installing
(at tremendous replacement cost) the new German machine by Draeger®
which measures the breath temperature and adjusts the "reading"
DOWNWARD (in favor of the test subject) when the body temperature
is higher than normal. Other states [e.g., NY, NJ, WI] have
also dropped the Intoxilyzer® (or Breathalyzer®) in favor of the
Draeger® machine, or the EC-IR®.
BREATH
TESTS ARE IN NO DANGER OF BEING REPLACED. States
continue to use breath testing due to its easy, non-invasive (i.e.,
no blood being drawn), inexpensive and FAST. This gets the
officers back out on the highways to look for more "drunk drivers".
Having an attorney
who is trained to know (and, where appropriate,
to attack) the breath machine's LIMITATIONS and weaknesses
is the first priority if you decide to fight your DUI/DWI case
in court. Every lawyer asked to join this web mega site has
been screened for trial skills, reputation as a "fighter" and
years of practice, to try to provide you with a choice of an advocate
in your state capable of analyzing the merits of your case, evaluating
your chances at trial and providing you with "informed" choices
before you proceed to court.
