DUI question

[Chris_562]

Checked through some WV case law, statute and some first hand experience. I have on several occasions arrested D.U.I. cases involving BAC's lower than the states prim a fascia limit of 0.08 %. While your friend is wanting to challenge results from a secondary chemical breath test, it may not be enough to discredit the officers standardized field sobriety tests and his observations.

As for "PC", probable cause is not required to initiate a traffic stop, only the ability articulate reasonable suspicion is required. It is a much lower burden of proof. So trying to fight it on the initial stop is usually a mute point. Any officer that his fairly familiar with state and local laws and codified ordinance can usually stop 99% of vehicles legally; just have to know what to look for and how it is interpreted under the law.

In WV the common approach attorney's seem to use is to first attack the fields sobriety tests and observations and if they're going to lose then they work on deals in which the defendant can keep their operators. Usually when the BAC% is argued, it is a discovery issue and the case is fought on the other facts.

Currently WV has such open ended laws on DUI with controlled substance that arrests and prosecutions are being successfully completed based completely on observations with no secondary tests.

Again these are just my observations from a different state.

 

[Hlistr_07RR]

What this is is a reference. The intoxilyzer is NOT testing subject breath at that 0151 time. It is IMPOSSIBLE to obtain an evidentiary breath test on an Intoxilyzer 5000 of EITHER type that quickly. The machine must purge, and there is a sixty second waiting period (timed) along with these purges (before and after lasting about 30 seconds each as well).

There is a container on the machine designed to meet the criteria of DUI for that state. This state in question is MOST likely using a .08 reference sample. The machine takes the subject breath, purges, then tests a pre-mixed reference solution to show on the print out it is calibrated and able to detect alcohol. This solution is usually an alcohol and water mixed in proportion to .08 under a certain heat. The sample has a thermostat to keep the temperature correct, and keep the pre-mixed sample at .08 + or - .01. The + or - is acceptable on the solution since alcohol fluctuates with air temperature/pressure/and even density. That is why you see the differing tests results so close together (1 minute apart) and a reference sample of .078. Subject blows, then purge, then a test of the reference solution, then purge, then waiting period of 60 seconds. Then another purge and the machine is ready for the second subject test. Most subjects see this printed as "reference sample" on the printout in the middle and think they passed. It is not their breath. Just a preset sample on the side of the machine for calibration.

The first and third numbers should be the subject's breath on a 5000 or 5000EN. The best case against a DUI is probable cause for the stop, since there are so many evidentiary things to go over in court. Fail to signal a turn is an easy one since the dash cam either caught it, or didn't. That is where the defense attorney comes into play. He will watch the video to see if the client signalled (long before court). If not, then he will try to attack the actual evidence in the case (less likely to work) and he will hopefully tell his client to try to plea the case out if the deck gets too stacked.

Was gonna say something but this guy covered it. You're not reading the paper right. He was a .1, that .078 was the sample from the instrument doing the diagnostics making sure it was working correctly in between breaths.