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Breathalyzer Tests and Problem DUI Enforcement Strategies
Defendants and advocacy groups have long questioned whether breathalyzer machines are properly calibrated to accurately measure blood-alcohol content after a DUI stop.

Breathalyzers have gained considerable scrutiny across the United States as more defendants challenge the accuracy of blood alcohol test results. Breathalyzer machines are used by scores of law enforcement agencies to measure the level of alcohol in a person’s blood. If a driver’s BAC is above .08, he or she could be arrested for driving under the influence of alcohol (DUI) or driving while intoxicated (DWI).

Specifically, defendants and advocacy groups have long questioned whether the machines were properly calibrated to accurately measure blood-alcohol content. Last summer, the D.C. Attorney General’s Office reported that hundreds of DUI charges and convictions were based on faulty breathalyzer readings stemming back to 2008. Further investigations have revealed that the Intoxilyzer 5000 machine had been miscalibrated, showing some drivers’ BAC levels to be 20 percent higher than they actually were.

Half of those convicted of DUI served jail time because of the flawed results.  However, the Attorney General’s Office suggests that these findings would not change routine DUI cases, since an officer’s observations are commonly sufficient to make an arrest based on suspicion of DUI.

With that, this article will highlight the legal standard in Maryland for making DUI stops, explain how field sobriety tests work and discuss other steps law enforcement can take to make a DUI arrest.

Traffic stops and the Terry standard

In order to initiate a stop, a police officer must have a reasonable, articulable basis for stopping a vehicle. This is quite a liberal standard based on the U.S. Supreme Court Case, Terry v. Ohio, which established the perimeters for investigative detentions by police.  Courts have generally recognized that traffic stops are in essence Terry stops. In this context, an officer may stop a vehicle if he or she believes that the driver has committed a traffic violation or if the vehicle has some type of equipment defect that warrants a citation.

This standard has led to inordinate amounts of litigation, considering that some “routine” traffic stops involve the police engaging in intense questioning that has little, if anything, to do with the perceived violation. The primary complaint is that police officers regularly exploit drivers’ fears and manipulate them into incriminating answers that justify an officer’s suspicions of illegal activity.

Criminal defense lawyers commonly analyze the traffic stop to discover any Fourth Amendment violations, which would render any evidence discovered from an illegal stop (and the subsequent arrest) invalid. As such, court would likely find that the stop was improper and dismiss the DUI charge.

Field Sobriety Tests

Police officers use field sobriety tests to further their suspicion that a driver may be under the influence and justify an arrest. In 1977, the National Highway Safety Transportation Association established a uniform battery of tests that law enforcement agencies could rely on in assessing a driver’s intoxication level. These include the walk-and-turn, the one legged stand, and the horizontal gaze nystagmus (HGN) test.

With each test, police officers look for certain clues that suggest the driver is intoxicated, such as swaying or losing balance (with the walk and turn or one leg tests), not following specific instructions or significant eye movement (with the HGN test). The NHSTA endorses these tests as the third part of a three pronged test, in which officers must have reasonable observations of the vehicle and of the driver before requiring him or her to perform a sobriety test.

Criminal defense attorneys believe these tests are inherently unfair and are designed for people to fail. Also, they often find that officers do not follow the proper protocols in administering the tests, further compromising their validity. Nevertheless, if a driver fails a field sobriety test, the officer has probable cause to make an arrest.

The “No Refusal” Strategy

During the recent New Year’s holiday, law enforcement agencies in Florida, Illinois, Louisiana, Texas, Arizona, Utah and Idaho employed a tactic called “no refusal” to force blood alcohol testing of those suspected of DUI, even if they legally refuse to submit to a breathalyzer test.

This strategy is directed at those who seek to prevent police from finding them intoxicated at the scene, as well as those who dubiously wait to seek a blood test. Many states allow suspected drivers to opt for a blood test, especially at their own expense. When such a test is finally taken, many drivers will have a lower (and legal) BAC than when they were initially arrested, thus thwarting a DUI charge.

Under the “no refusal” strategy, judges wait at sobriety checkpoints to issue search warrants so that on-site nurses can immediately take blood samples and measure a driver’s BAC. As such, an impaired driver would not be able to prevent police from obtaining DUI evidence. While supporters point to positive statistics such as increased DUI convictions and fewer alcohol related accidents, the validity of such search warrants can still be questioned. If a warrant was improperly given, the subsequent DUI charge could be set aside.

If you have questions about the validity of a DUI stop, or if you have been arrested on suspicion of driving under the influence, an experienced Maryland DUI defense attorney can help answer your questions.

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