One of the important tools police officers have at their disposal in the investigation of drunken driving is the use of breath testing. Breath testing comes in two basic forms: first, there is roadside testing on small breathalyzer devices; and second, there is the official breath testing conducted after a suspect is arrested and brought down to a precinct.
Roadside breath testing is used by officers as a way to gather potential evidence to justify an arrest, which cannot take place without probable cause to believe that drunken driving occurred. The official breath testing conducted after a suspect’s arrest can provide prosecutors evidence to use in court for obtaining a conviction. If the reading is .08 percent or above, the presumption is that the defendant was impaired at the time of arrest, and it is more difficult for the defendant to argue he or she was actually not impaired.
The presumption of intoxication implied by a breath test reading at or above .08 percent, being a presumption, can be refuted. That is what happened in a recent Texas case involving a woman who was charged with drunk driving after blowing a 0.40 reading on a breathalyzer. According to her attorney, however, she ended up being released from the hospital without any symptoms of intoxication. Because of this, the attorney had the woman tested to see what her blood alcohol levels looked like over a 12 hour period. As it turns out, she had elevated baseline blood alcohol levels and didn’t show any signs of intoxication until reaching between 0.30 and 0.40, which is obviously very unusual.
Ultimately, the judge ended up dismissing the case because the lawyer argued that the woman has a rare condition called “auto-brewery syndrome,” which causes her gut to ferment alcohol from food intake.
In an upcoming post, we’ll continue looking at the topic of breath testing, and the importance of working with an experienced attorney to carefully scrutinize any evidence in this area.
