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Tag Archives: breath test

GROUNDWORK SET FOR ADDITIONAL CHALLENGES TO DRAEGER ALCOTEST 9510 BREATH TEST MACHINES IN MASSACHUSETTS

The recent decision by Massachusetts district court judge Robert Brennan regarding Draeger Alcotest 9510 breath test machines in Massachusetts laid the groundwork for more wide-ranging challenges to the devices. Brennan’s decision is a win for defendants whose breath test results are from 9510 devices that were last calibrated before the state police Office of Alcohol Testing (“OAT”) established written protocols regarding annual calibration on September 14, 2014. In his decision, Judge Brennan noted that “in the absence of written protocols, ... Read More »

Will .05% Become the New National Legal Limit?

On March 8, 2017, Utah lawmakers passed legislation to lower the legal limit for a driver’s blood alcohol level to 0.05%.[1] Utah’s governor must still approve the bill, but if signed into law, the lowered blood alcohol limit will take effect in the state on December 30, 2018—just before New Year’s Eve.[2]   Gov. Gary Herbert’s office told FOX 13 TV station on Wednesday night he plans to sign the bill into law, making Utah’s DUI threshold the lowest in the ... Read More »

DECISION ON SCIENTIFIC RELIABILITY OF DRAGER 9510 IN MASSACHUSETTS

After hearing testimony over ten days, Judge Brennan of the Massachusetts district court department issued his decision regarding the defense bar’s challenge to the scientific reliability of the Draeger Alcotest 9510 breathalyzer, first deployed in Massachusetts in June 2012. The defense bar’s motion to exclude breath test results from the 9510 machines as evidence against defendants was allowed in part and denied in part. The court determined that the scope of its inquiry should include: 1) whether the source code ... Read More »

CLOSING ARGUMENTS AT MASSACHUSETTS HEARING CHALLENGING RELIABILITY OF DRAEGER ALCOTEST 9510 BREATH TEST MACHINES

The hearing regarding the scientific reliability of the Draeger Alcotest 9510 breath test machines concluded with closing arguments on Friday, February 3. The defense bar argued that because the relevant statute states that simply driving with a .08 blood alcohol concentration, as measured by the 9510 machine, is enough for a conviction, regardless of the tolerance an individual driver may have or any effect on their driving, the reliability of the machines should be subject to the highest scrutiny. The ... Read More »

MORE PROBLEMS WITH DRAEGER ALCOTEST 9510 BREATH TEST MACHINES IN MASSACHUSETTS

On Friday, February 3, the final day of hearings regarding the scientific reliability of the Draeger Alcotest 9510 breath test machines, a representative from Draeger testified that a previously unknown error appears to have been caused because the machines were programmed to use an incorrect value during performance checks and calibration. The 9510 machines use two sensors to measure blood alcohol: An infrared sensor, as required by statute, and an electro-chemical fuel cell. During calibration, the measurements of the two ... Read More »

UPDATE ON DRAEGER LITIGATION

The Massachusetts Supreme Judicial Court recently modified the scheduling order set by the District Court Department regarding the defense bar’s challenge to the scientific reliability of the Draeger Alcotest 9510 breath test machines. Justice Botsford, citing the complex nature of the matter, extended the litigation into next year. The modified schedule allows the defense bar more time to examine the machines and for all parties to produce and review expert opinions. Pursuant to the modified schedule, the defense bar must ... Read More »

Kansas Criminal Refusal Law in Limbo

In February of 2016 the Supreme Court of the State of Kansas declared Kansas’ criminal refusal statue unconstitutional. In State of Kansas v. Ryce, State of Kansas v. Wycoff, State of Kansas v. Nece and State of Kansas v. Wilson, the Supreme Court found K.S.A 8-1025 (criminalizing the refusal of a chemical test) Facially Unconstitutional. The Court relied on violations of Due Process and the Doctrine of Unconstitutional Conditions, in finding the statute facially Unconstitutional. The ruling remains very much ... Read More »

An Alcohol Monitoring…Tattoo?

As DUI defense practitioners are well aware, a transdermal monitoring device such as a “SCRAM” device (a Secure Continuous Remote Alcohol Monitoring Device) is a prevalent but sometimes onerous tool in the bond condition, plea bargaining and sentencing processes. A client may be ordered to wear a SCRAM device ankle bracelet prior to trial, during probation, or as part of a compromised resolution of the case. The transdermal monitoring device continuously monitors a person’s blood alcohol level through skin contact ... Read More »

Florida Breath Testers Not Registered

Stephen Daniels of DUI UNDO Consultants has announced a new challenge he discovered while spending time trolling the Florida Administrative Rules regarding breath testing in Florida.  Under Florida Administrative Code section 11D-8 which covers the testing of substances for alcohol in DUI cases, an evidentary breath test instrument must be registered prior to use.  The rules under 11D8-004(4) state that Department Inspectors shall be employed… to register evidentary breath test instruments…  Until the last 30 registrations, all breath test instruments ... Read More »

Can Body Temperature Affect Breath Test Results?

Law enforcement DUI investigation techniques depend largely upon the fictitious premise that all humans are physiologically identical. Without that presumption, field sobriety and breath alcohol tests would not be possible. There are, of course, many examples of physiological differences — from person to person and within one person from moment to moment — which will directly alter breath or blood alcohol testing in DUI investigations. A few examples are diabetes, GERD (acid reflux), anemia — even sex and race create ... Read More »