DUI Defender

At a recent conference on “scientific evidence” an extensive period of time was spent discussing the challenge to the Draeger breath tester.  The presenters Evan Levow and John Mensel, lead counsel on the Draeger challenge, discussed at length the efforts by Draeger to thwart defense attorney’s from investigating the software of the breath tester.  Their conclusion was that Draeger was essentially asking the State to “trust them” regarding the manner with which the breath was captured, measured and then converted into a blood alcohol concentration.  The fact of the matter is that it should be a open process, how the tester calculates the blood alcohol range based on the breath sample.  People’s liberty rests on the ‘testimony” of this black box, it should be scrutinized before being accepted.  The battle for “open source” code regarding breath testers is also underway in Florida, Georgia and some other States.  While the New Jersey Special Master’s Report concluded that the machine was reliable, it left many issues unanswered.

The device is authorized for use in New Jersey (and in Santa Clara, San Mateo, Contra Costa, Marin and Solano Counties) makes physiological assumptions as well.  While Draeger manufactures accessories that measure breathe temperature and breathe volume the Government chose not to purchase them.  The existence of these accessories reflects the reality that every person has a different lung capacity and some may have a different breath temperature.  The issue of breath temperature has become increasingly relevant as even one degree can cause the breath test to over estimate the blood alcohol concentration by up to 6% meaning that a low breath alcohol measurement could be below the legal limit.  The fact that the State has the capacity to measure the temperature of the breath test and doesn’t arguably denies defendant’s exculpatory evidence and provides a sure fire defense to the “per se” charge of driving with a blood alcohol concentration of .08 or above.

In the balance hang thousands of cases that have been stayed pending a final decision in the case.  The Supreme Court of New Jersey is expected to render a decision on the Special Masters report this summer.  The challenges brought in New Jersey do not directly effect the admissibility of the Draeger breath records in California, however the conclusions of the special master could have some persuasive value in cases that involve Draeger breath testers, breath temperature and possibly even partition ratio.

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