"DUI Chemical Testing and Breathalyzer Challenges"

One or more scientific tests presently are conducted in all jurisdictions on driving-while-intoxicated suspects for the purpose of (1) bolstering and corroborating police opinion testimony of intoxication and, (2) in those states that set presumptive blood-alcohol intoxication levels, to demonstrate that the defendant's blood-alcohol level exceeded the permissible. Use of evidence of blood-alcohol concentration helps standardize the opinions of experts and minimizes reliance on the traditional evidence of intoxication on which opinions can vary so widely. Where a scientific test has been made on the defendant, it often is the main weapon of the prosecution, with all other evidence being used to corroborate the test results.

There are four basic scientific tests which may be conducted to determine the degree of intoxication: blood, urine, breath, and saliva tests. The results of urine, saliva, and breath tests for alcohol must be converted into a blood-alcohol reading in order to be useful in determining whether the subject was intoxicated.


Confrontation Clause challenges to lab reports: Toxicology data generated by lab machines from testing of defendant's blood sample, indicating that defendant's blood contained phencyclidine (PCP) and alcohol, did not constitute "hearsay" evidence, subject to the Confrontation Clause, in prosecution for operating a motor vehicle while under the influence of drugs or alcohol, as the machines were not persons or declarants within the meaning of the hearsay rule. U.S.C.A. Const.Amend. 6; Fed.Rules Evid.Rule 801(c), 28 U.S.C.A. U.S. v. Washington, 498 F.3d 225, 74 Fed. R. Evid. Serv. 332 (4th Cir. 2007), petition for cert. filed (U.S. Dec. 14, 2007)

In People v. Superior Court (1972) 6 Cal 3d 757, 100 Cal Rptr 281, 493 P2d 1145, defendant, who had been in an automobile accident but had not been arrested, was awaiting emergency treatment in a hospital and he signed, at a police officer's request, a written consent authorizing the taking of a blood sample for purposes of a blood-alcohol test. The Supreme Court of California rejected the People's contention that the taking of a blood sample in a medically approved manner but without consent does not violate the Fourth or Fourteenth Amendments where there is probable cause to arrest, even though the taking is not pursuant to a search warrant or incident to a lawful arrest. The court disapproved several appeal court decisions insofar as they were inconsistent with this opinion and observed that the taking of a sample under the state implied consent law is expressly conditioned on a lawful arrest for driving under the influence of intoxicating liquor and upon the reasonable belief of the peace officer that the arrestee was, in fact, so driving. The Supreme Court noted that the burden of justifying the taking without a search warrant had not been met, since evidence sustained the trial court's determination that the consent, the only justification offered by the People, had not been free and voluntary.

A compulsory seizure of blood for a blood-alcohol test, without a warrant, is permissible if the procedure (1) is done in a reasonable, medically approved manner, (2) is incident to a lawful arrest, and (3) is based on a reasonable belief that the arrestee is intoxicated. Thus, the lack of informed consent did not make the withdrawal of blood from a driver arrested for driving under the influence of alcohol an unreasonable seizure, where the sample was taken at the police station without the driver's consent but without force, by a licensed clinical technologist, using a standard procedure and materials obtained from a local hospital. Withdrawal of a blood sample from a driver arrested for driving under the influence of alcohol at the police station without his consent, but without force, by a licensed clinical technologist using a standard procedure and materials obtained from a local hospital, did not deviate so far from reasonable medical practices as to constitute a constitutionally impermissible seizure. Thus, the municipal court did not err in dismissing the driver's motion to suppress the blood sample. The technologist certified the procedure used was medically approved; the technologist was described by his supervisor as "an outstanding phlebotomist"; apart from the issues of consent and authorization, defendant did not object to the manner in which the blood was withdrawn; and nothing suggested that performing the test in a jail rather than a hospital was unsafe or unsanitary. The seizure was not unreasonable per se merely because no injury or accident was involved or because of the misdemeanor nature of the offense. Given the seriousness of the threat posed by drunken driving, the fact that defendant was charged with driving with a blood-alcohol level of.08 or greater, and the evidentiary value of a blood test in such a prosecution, the community's need for evidence outweighed defendant's interest in privacy and security. People v. Ford (1992, 6th Dist) 4 Cal App 4th 32, 5 Cal Rptr 2d 189, 92 Daily Journal DAR 2757, review den (May 21, 1992).

In prosecution for driving under influence of alcohol, felony hit and run, and vehicular manslaughter, police officers were not required to obtain search warrant to forcibly extract blood sample from defendant's arm, where defendant, arrested for felony drunk driving, refused to provide sample of blood or urine so that his blood alcohol level could be determined and where defendant was under arrest, probable cause existed for taking blood and facts presented type of emergency situation in which there was no need for warrant; further, police officers did not violate defendant's due process rights, where officers used only that degree of force reasonably necessary to overcome defendant's combativeness and where withdrawal of blood was accomplished in medically approved manner. Carleton v. Superior Court (1985, 4th Dist) 170 Cal App 3d 1182, 216 Cal Rptr 890.

Drivers' consent to an alcohol breath test was not voluntarily given, where after being arrested for DUI, each driver submitted to a breathalyzer test after being informed of the implied consent warnings that if they failed to submit to an approved chemical test, their drivers' licenses would be suspended and evidence of refusal would be used at trial, but when it appeared that the intoximeter had been substantially modified and the modified instrument had not been recertified, drivers argued that their consent had not been voluntary, and that the results of the tests should be suppressed, because the changes were so substantial that the instrument required full recertification; additionally, since consent was based on misinformation that the chemical test was by an approved instrument consent was not voluntary. State v. Polak (1992, Fla App D1) 598 So 2d 150, 17 FLW D 1014.

Substantial evidence supported finding that officer complied with statutorily required 20-minute observation period before administering breath alcohol test; officer testified that he began observing defendant at 11:13 p.m. and administered the test beginning at 11:36 p.m., despite fact that jail records indicated defendant was admitted at 11:22 p.m., jailer testified that person admitting defendant probably took log-in time off of the computer screen in admission room, and that jail made no efforts to synchronize computer clock and intoxilyzer clock, Intoxilyzer Instrument Printer Card, which documented the testing of defendant, included officer's handwritten notation, "Observation Began at 2313 hrs", and printer card contained computer printout line stating "Subject Test.223 23:36 EDT". 500 Ky.Admin.Regs. 8:030 § 1(1). Eldridge v. Com., 68 S.W.3d 388 (Ky. Ct. App. 2001)

Noncompliance and refusal: A driver's act in not blowing into a breath testing machine and by blowing around the mouthpiece to prevent the necessary quantity of air to proceed into the machine may be considered a refusal to submit to a chemical test, so as to support revocation of driver's license. V.A.M.S. § 577.041. Tarlton v. Director of Revenue, State, 201 S.W.3d 564 (Mo. Ct. App. E.D. 2006)

Tampering charge: A person's blood alcohol content, as it exists inside their body and within their control, does not constitute "physical evidence," or a "thing presented to the senses" for purposes of statute making tampering with evidence a crime; potentially measurable amounts of blood still within the human body do not constitute evidence, and until one's breath or blood has been obtained or collected for analysis, it cannot be considered either "physical evidence" or a "thing presented to the senses.” Thus defendant who had three double shots of whiskey and half a beer following truck accident but before highway patrol officer asked defendant to take blood alcohol level (BAC) tests did not tamper with the evidence, as BAC level while still within defendant's body was not "physical evidence." Montana Code § 45-7-207. State v. Peplow, 2001 MT 253, 307 Mont. 172, 36 P.3d 922 (2001)

Allowing State to establish foundation for Intoxilizer result through annual certification form for Intoxilizer, which was hearsay, without calling records custodian for certification form, did not violate defendant's confrontation rights; annual certification form was not substantive evidence used to prove charged offense, and thus certification form was not offered or admitted under state crime laboratory hearsay exception, but merely offered as part of foundation required for admission of other substantive evidence. Fed R Evid Rules 104(a), 803(8); Mont.Admin.R. 23.4.214. State v. Delaney, 1999 MT 317, 297 Mont. 263, 991 P.2d 461 (1999)

In State v. Fuller, 24 NC App 38, 209 SE2d 805, the court granted new trial after a conviction for driving while under the influence of intoxicating liquors and resisting an officer, holding that the failure of the state to establish that the defendant was accorded his statutory right as to advice that he could have another blood alcohol test administered rendered the results of a breathalyzer test inadmissible in evidence, its admission over objection constituting prejudicial error.

Allegation that blood sample of defendant charged with driving under the influence of alcohol or a controlled substance (DUI) was improperly refrigerated before hospital conducted blood alcohol content (BAC) tests was insufficient to require state to provide additional evidence to prove reliability of BAC test, since allegation was a general and speculative allegation of testing error. 75 Pa.C.S.A. § 1547(c). Com. v. Demark, 2002 PA Super 170, 800 A.2d 947 (Pa. Super. Ct. 2002)

Chemical intoxication tests—Statutory presumptive intoxication levels

Forensic scientists in the employ of the state and national safety organizations have attempted to establish that, at a certain level of alcohol in the blood, any individual would be intoxicated. Interestingly, there is some difference in state legislation as to the exact percentage considered to establish that the individual was intoxicated, ranging from a low of 0.08 percent to no set limit. Probably 0.15 percent is the most generally accepted limit, but 0.10 percent is gaining support. In several areas, the state's experts now will testify that 0.10 percent of blood alcohol places the subject "under the influence," whereas the same experts previously testified that it took 0.15 percent.

All states presently set presumptive intoxication levels in terms of blood-alcohol concentration. Expert witnesses generally are not required to interpret the results of chemical intoxication tests enumerated in statutes creating presumption or other inference of intoxication from specified percentages of alcohol in the system. Despite a test result creating a presumption of intoxication, the jury may acquit if the defendant's guilt is not proven beyond a reasonable doubt. In most states, an agency of the state government has responsibility for determining the appropriate methods of handling chemical intoxication tests and for certifying testing operations.

Statutes generally establish presumptive levels of intoxication in terms of blood alcohol patterned after the Uniform Chemical Test for Intoxication Act § 7. Uniform Chemical Test for Intoxication Act § 7 provides that if chemical analysis indicates 0.05 percent or less alcohol by weight in a person's blood such fact is prima facie evidence that the person was not under the influence of intoxicating liquor, that if the concentration of alcohol was in excess of 0.05 percent but less than 0.15 percent by weight such fact was relevant but not to be given prima facie effect in establishing that the person was or was not under the influence of intoxicating liquor, and that if 0.15 percent or more alcohol by weight was disclosed by the test such fact was prima facie evidence that the person was under the influence of intoxicating liquor.

Chemical intoxication tests—Automatic or per se DWI statutes


Driving under the influence (DUI) statute that prohibited persons under age 21 from driving with a blood alcohol level of .02 or more, while prohibiting persons 21 and over from driving with a blood alcohol level of .08 or more, did not violate equal protection rights of younger group; statute was rationally related to the proper governmental purpose of prohibiting underage drinking and driving. U.S.C.A. Const.Amend. 14; Code 1975, §§ 28-1-5, 32-5A-191. Jolly v. State, 858 So. 2d 305 (Ala. Crim. App. 2002), cert. denied, (Mar. 28, 2003)

In order to support a charge of "traditional DUI", the State must prove that a defendant was driving or in physical control of a vehicle while under the influence of intoxicating liquor; in contrast, to support a charge of "per se DUI," the State need not prove that the defendant was under the influence while driving or controlling a vehicle, as it suffices to prove that, within two hours of driving or controlling a vehicle, the defendant had an alcohol concentration at or exceeding the statutorily determined rate. Arizona Revised Statutes § 28-1381A1, 2. Guthrie v. Jones, 202 Ariz. 273, 43 P.3d 601 (Ct. App. Div. 1 2002)

Because state chose to prosecute driver for violation of "per se" paragraph of drunk-driving statute, and not for violation of "under influence" paragraph, proof of properly administered chemical test showing blood-alcohol level higher than statutory standard of 0.10 percent was conclusive proof of violation, without need for proof that defendant's driving was impaired. State v. Edmondson (1994, Idaho App) 867 P2d 1006.

"Zero tolerance law," which makes it a crime for anyone under age of 21 to drive with blood alcohol content of 0.02 percent or higher is rationally related to a legitimate legislative purpose of reducing teenage traffic fatalities and protecting all members of the public and thus does not violate equal protection rights of those prosecuted under that law. U.S.C.A. Const.Amend. 14; Const. §§ 1 to 3; KRS 189A.010(1)(e). Com. v. Howard, 969 S.W.2d 700 (Ky. 1998).

Evidence supported conviction for violation of per-se drunk-driving statute forbidding driving with blood alcohol level of 0.08 percent or more, where breath test whose proper administration was disputed showed 0.09 percent, test had barely sufficient margin of error of 0.015 percent to support defendant's claim that blood-alcohol level could have been below 0.08 percent, and ample evidence of erratic driving supported inference that level was 0.08 percent or more. State v. Weeks (1993, Me) 634 A2d 1275.

Minors: Statute, by imposing strict liability upon driver under age of 21 who has alcohol concentration of 0.02 or more, regardless of whether his ability to drive is impaired, does not create conclusive burden-shifting presumption that violates Due Process Clause; statute does not create factual presumption with respect to when illegal alcohol concentration is present, and impairment is not element of crime. U.S.C.A. Const.Amend. 14; Montana Code § 61-8-410. State v. Luchau, 1999 MT 336, 297 Mont. 415, 992 P.2d 840 (1999)

Trial court in prosecution for driving under influence of alcohol erred in instructing jury as to statutory presumptions arising from various blood alcohol levels (less than 0.05 percent, presumed not intoxicated; 0.05–.10, blood alcohol level may be evidence of intoxication; more than 0.10, presumed under influence), without also instructing that presumed fact (driver under influence) allowed by third presumption must nevertheless be proved beyond reasonable doubt, and where jury returned general guilty verdict without distinguishing between traditional "under influence" charge based on presumptions and "per se" offense based on blood alcohol level alone. Long v. State (1993, Nev) 853 P2d 112.

Where the defendant's blood alcohol content was measured at.141 percent about 2 hours after his arrest, the blood alcohol content did not represent a substantial departure from the permissible limit and could have been below.10 percent when he was stopped and risen above the limit during the substantial delay prior to testing and, therefore, the inference of guilt was too weak to support the defendant's conviction for driving under the influence of alcohol with a blood alcohol content of.10 percent or greater in the absence of evidence relating his blood alcohol content test results back to the time of driving. Commonwealth v. Loeper (1995, Pa) 663 A2d 669.

Driving under the influence of alcohol statute (DUI) merely created a permissive evidentiary inference, rather than a mandatory presumption, that a driver had a blood alcohol content of.10 percent or more at the time of driving if a test, conducted within three hours after driving, indicated a blood alcohol content of.10 percent or more, and thus, statute did not create the unconstitutional prospect of conviction for innocent conduct, in that it did not preclude a defendant from admitting evidence that his blood alcohol content was below the legal limit at the time of driving. 75 Pa.C.S.A. § 3731(a)(1). Com. v. Murray, 2000 PA Super 84, 749 A.2d 513 (Pa. Super. Ct. 2000)

Witness's testimony at trial for intoxication manslaughter that results of lab tests on defendant's blood showed a blood alcohol content of 0.18 was based on scientific testing that was sufficiently reliable to prove matter asserted, namely that defendant's blood alcohol content exceeded "per se" level of 0.10, even though defendant challenged precision of lab's measurements of his blood alcohol level; lab tests were accurate to within plus or minus 10%, and potential error in reporting defendant's blood alcohol content at 0.18 did not create a risk that his actual blood alcohol content was lower than "per se" level. V.T.C.A., Penal Code § 49.08; Rules of Evid., Rule 702. Morris v. State, 214 S.W.3d 159 (Tex. App. Beaumont 2007), petition for discretionary review granted, (Sept. 12, 2007)

Chemical intoxication tests—Implied consent laws; effect of refusal to submit to test

All fifty states and the District of Columbia have enacted statutes authorizing the admission in evidence of the results of chemical intoxication tests. These statutes are commonly referred to as "implied consent laws"; they generally declare that driving is a privilege subject to state licensing, with one of the conditions for obtaining a license that the driver submit to a test for intoxication on request. The police must have probable cause to request a chemical intoxication test. Because of differences in language among the state statutes, it is necessary for counsel to consult his state's statute and to refer to supportive case decisions to ascertain the full rights of his client respecting submission to these tests.

Differences in statutory provisions include such matters as sanction or the lack of sanction for refusal to submit to a test, admissibility as evidence of the fact of refusal to submit to test, the type or types of tests that can be made, whether the police or the defendant can choose the type of test to be administered, the qualifications of the persons who give or supervise the tests, the predicate that must be laid for the introduction of results of the tests, whether the defendant is entitled to his own independent test in addition to the one administered by the police, and whether a dead, unconscious, or disabled person may be tested without permission. Implied consent statutes ordinarily do permit the person tested to have a physician of his own choice administer a chemical intoxication test in addition to the one administered at the direction of the police.

The refusal of a motorist to submit to a chemical intoxication test generally constitutes grounds, under implied consent statutes, for the suspension or revocation of his driver's license. In most states, acquittal of the charge of driving while intoxicated does not preclude revocation or suspension of the motorist's license for refusal to submit to the test. However, the motorist generally has a right to a hearing on the question of the reasonableness of his refusal to submit to the test before his license may be revoked or suspended. Currently, the States of Texas, Wisconsin, Mississippi, and North Carolina do not penalize the driver for refusing to submit to the test if a driving while intoxicated case is dismissed or there was a finding of not guilty.

Implied consent law applied broadly and generally to those who drive, and did not require proof of actual driving immediately prior to lawful arrest for driving while under the influence; thus, under statute providing for suspension or revocation of driver's license based on refusal to submit to chemical testing under implied consent law, proof that arrestee was driving immediately prior to the arrest was not required; abrogating Weber v. Orr,274 Cal.App.2d 288, 79 Cal.Rptr. 297; Medina v. Department of Motor Vehicles,188 Cal.App.3d 744, 233 Cal.Rptr. 557; Jackson v. Pierce,224 Cal.App.3d 964, 274 Cal.Rptr. 212. West's Ann.Cal.Vehicle Code §§ 13353, 23612. Troppman v. Valverde, 40 Cal. 4th 1121, 57 Cal. Rptr. 3d 306, 156 P.3d 328 (2007)

Police dispatcher who observed driver's refusal to consent to breath alcohol test over a closed circuit television did not "witness" the refusal, as required to endorse police officer's report of the refusal under the implied consent statute; when a person is observing via closed circuit television, she is completely reliant on the image, and perhaps sound, supplied by the camera in the other room, and as a consequence, there is no guarantee that she will be able to see and hear fully what is happening. C.G.S.A. § 14-227b(c). Winsor v. Commissioner of Motor Vehicles, 101 Conn. App. 674, 922 A.2d 330 (2007)

Defendant's proclaimed fear of needles was not sufficient cause for his refusal to submit to blood alcohol concentration (BAC) test, following his arrest for driving under influence of alcohol (DUI); defendant indicated to officers that he simply "preferred" to have a breath test rather than a blood withdrawal, while defendant expressed general fear of needles, and generally referenced risk of contracting Acquired Immune Deficiency Syndrome (AIDS), defendant admitted that he had received shots, he denied ever having seen a psychologist for his fear, and he never identified any mental or medical conditions that would be adversely affected by administration of blood withdrawal. Halen v. State, 136 Idaho 829, 41 P.3d 257 (2002)

Testing after "accident": Intoxicated motorist who had been driving vehicle in an out of control manner and who eventually came to a stop in vehicle with a tire missing and damage to vehicle rim, was in an "accident" for purposes of automobile exception to physician-patient privilege contained in implied consent statute, and thus results of blood test taken from motorist were admissible in prosecution for driving under the influence of intoxicating liquor. M.C.L.A. § 257.625a(6)(e). People v. Green, 260 Mich. App. 392, 677 N.W.2d 363 (2004), appeal denied, 471 Mich. 873, 685 N.W.2d 669 (2004)

"Confusion doctrine," under which drunk-driving arrestee might assert confusion arising from proximate advice by arresting or booking officers as to both Miranda right to counsel and implied-consent law that does not allow counsel for decision whether to submit to chemical testing of blood alcohol level, would apply, if at all, only where Miranda warning precede implied-consent warnings. Blomeyer v. State (1994) 264 Mont 414, 871 P2d 1338.

Defendant's due process rights were violated, even though he consented to withdrawal of blood, when he was shackled to hospital bed and held down by six persons while another person withdrew his blood at direction of police officers while defendant was resisting. U.S.C.A. Const.Amend. 14; Const. Art. 1, § 10. State v. Sisler, 114 Ohio App. 3d 337, 683 N.E.2d 106 (2d Dist.Clark County 1995).

Motorist's fear of invasive medical procedures, including injections and tests using needles, and concern about risk of contracting HIV (human immunodeficiency virus) did not justify refusal to submit to blood alcohol test. Jacobs v. Com., Dept. of Transp., Bureau of Driver Licensing, 695 A.2d 956 (Pa. Commw. Ct. 1997), appeal denied (Pa. Aug. 13, 1997).

Motorist's refusal to sign waiver of hospital-liability form, because he had lost his eyeglasses and was unable to read it, did not constitute refusal to take blood test for purposes of license suspension under implied-consent law, where motorist testified that he did not refuse to take blood test but refused to release hospital from liability by signing form, and waiver of hospital liability was not same as hospital consent form, which did not constitute impermissible precondition to chemical testing so as to excuse motorist's refusal to submit to blood test. Stump v. Department of Transp., Bureau of Driver Licensing (1995, Pa Cmwlth) 664 A2d 1102.

Motorist's fear that needle to be used to obtain blood sample was not sterile was not valid justification vitiating his refusal to submit to blood-alcohol test. Stenhach v. Department of Transp., Bureau of Driver Licensing (1994, Pa Cmwlth) 651 A2d 218.

Defendant failed to establish that she was physically unable to provide an alcohol breath test sample, and thus the Commonwealth was under no duty to prove that it offered defendant a blood test, during prosecution for driving under the influence (DUI); defendant provided no medical records or witness testimony to substantiate her claim that she had a chronic lung condition, she had successfully completed breath tests on two prior occasions when she was convictions of two prior DUI's, and police officer testified that defendant provided an adequate breath sample when he stopped her vehicle, that she failed to provide an adequate breath sample after he brought her to the police station, and that he believed that she "was not trying to give him a proper breath." West's V.C.A. § 18.2-268.2, subds. A, B. Sawyer v. Com., 43 Va. App. 42, 596 S.E.2d 81 (2004)