The Mn Criminal Defense, Personal Injury & Family Law Blog
Can MN DWI Lawyers Beat the Breathalyzer?
September 17, 2018
If officers have probable cause to believe that the defendant is intoxicated, they may ask the defendant to provide a chemical sample. Nationwide, about 20 percent of drivers refuse to Breathalyzer test. That percentage may be a little lower in Minnesota, since the Gopher State has a refusal-to-submit law. In refusal cases, prosecutors can, and almost always do, upgrade the charges to third-degree DUI.
Without a chemical test, prosecutors must rely on circumstantial evidence to obtain convictions in these cases. It is much easier for MN DWI Lawyers to challenge such evidence in court. That’s especially true because of the high burden of proof in criminal cases. County prosecutors must establish guilt beyond any and all reasonable doubt.
Even if the defendant provided a breath sample, there may be an effective defense. However, some of these defenses are more effective than others.
Three Breathalyzer Myths in Minnesota
Alexander Pope once wrote that “A little knowledge is a dangerous thing.” Some of the most prominent breathalyzer myths have a grain of truth, but that’s about it.
Suck on a Penny
“If you’ve been drinkin’ then suck on Lincoln,” right? Copper does disrupt the chemical process which the Breathalyzer measures. A sufficient amount of copper may alter the results enough to call them into question.
Alas, pennies only have trace amounts of copper. They are mostly zinc and other cheap metals with copper coloring. So, to affect the test, a person must suck on a mouthful of pennies, and even that may not be enough. Moreover, officers almost always check for foreign substances before they administer the test.
Drink Coffee/Chew Gum
These actions temporarily eliminate some intoxication effects. Drinking coffee helps people feel more alert and chewing gum masks the odor of alcohol.
However, these things do not “cure” intoxication. Only time does that. So, even if you chew a whole pack of Extra Spearmint Gun and down a thermos of coffee, Breathalyzer results are unaffected. Moreover, officers may use other signs of alcohol consumption as reasonable suspicion, such as bloodshot eyes or an oral admission.
In 2012, a Florida man left the scene of a fatal DUI crash, went to a nearby Circle K, bought a can of beer, and began drinking. He eventually pleaded guilty, but his idea was somewhat sound. As outlined below, mouth alcohol affects Breathalyzer results.
However, the Breathalyzer measures ethanol particles in the breath as opposed to liquid alcohol in the mouth. So, much like the penny suck defense, someone must consume a very, very large amount of alcohol to change the test results. That’s usually not possible. Moreover, the jury may consider sudden consumption an admission of guilt. Jurors may also not look too kindly on such a brazen attempt to flaunt the Breathalyzer.
Three Breathalyzer Flaws
So much for some major Breathalyzer myths. Fortunately, MN DWI Lawyers may also draw on some Breathalyzer facts. These flaws are especially significant in borderline BAC cases, such as a .08 or .09.
To fully appreciate these flaws, it’s important to understand how the Breathalyzer works. Breathalyzers measure breath alcohol levels and then use that figure to estimate Blood Alcohol Content. That extra step may make a big difference.
Liquid alcohol only affects the results slightly. But burping, vomiting, or belching affects the results significantly. Ethanol particles flood the mouth when these things happen.
Technically, officers must monitor defendants for fifteen minutes before they administer breath tests. But under current law, officers need not monitor defendants very closely. So, there may be no way to tell if the defendant burped, vomited, or belched immediately prior to the test.
The body processes alcohol through the liver, into the blood, and out through urine. The absorption process takes at least an hour in most cases.
If the defendant has been drinking during that time period, the breath alcohol level may not accurately reflect the blood alcohol level. It is not illegal to “drink and drive.” In chemical test cases, it is only illegal to have a BAC above the legal limit.
Unless the defendant says s/he has not had anything to drink within the last couple of hours, a Brainerd lawyer can use the unabsorbed alcohol theory to create reasonable doubt as to the test result.
Smokers, diabetics, and some other people have high acetone levels in their breath. Acetone is an industrial solvent commonly found in nail polish remover. But the body also produces acetone in small quantities. In certain cases, that production is even higher. In fact, some people with high ketone levels develop ketoacidosis, which is a potentially fatal condition.
Breathalyzers register acetone as ethanol, since these substances are chemically similar. The Breathalyzer result is just a number. This gadget does not break down the breath alcohol level. So, there is no way to know how much of the score is ethanol and how much is acetone. In some cases, that uncertainty may be enough to produce reasonable doubt as to the results.
Call Today To Speak With An Experienced MN DWI Lawyer From Carlson & Jones
Even if the defendant provides a chemical sample, all is not lost in a DUI case. For a free consultation with an experienced MN DWI Lawyer, contact Carlson & Jones, P.A. We routinely handle cases statewide.