Articles Posted in DUI Tests

The U.S. Supreme Court ruled this week that police must, in most cases, first seek a warrant from a judge before ordering a blood test of a person arrested for driving under the influence of alcohol (DUI).

Supreme Court RulingThe case before the Court involved a driver from Missouri, who was pulled over on suspicion of drunk driving. After administering several field sobriety tests, the police officer asked the driver to submit to a breath test. He refused and was taken to a hospital, where blood was drawn despite the driver’s objections. The driver was later convicted of a DUI in Missouri. The Missouri Supreme Court, however, threw out the blood test results, stating that the officer’s failure to get a warrant made the blood draw an “unreasonable” search and seizure prohibited by the Fourth Amendment.

In both the state Supreme Court and the U.S. Supreme Court, the state argued that because the body metabolizes alcohol in the bloodstream, there is no time for police officers to get warrants before taking a blood sample, and therefore an exception to the Fourth Amendment should apply. The U.S. Supreme Court disagreed with this reasoning, however.

The Court’s opinion, released Wednesday, April 17, did not provide detailed guidance about when police officers may draw blood in DUI cases without a warrant. In his concurring opinion, however, Justice Anthony Kennedy noted that future Supreme Court cases may provide an opportunity for the Court to answer this question.

In Colorado, the state’s “express consent” law presumes drivers have consented to a breath or blood test for DUI by accepting a driver’s license. DUI chemical tests are often vital to a Colorado DUI case. Attorney Tim Bussey has years of experience focusing on how DUI tests work and how they should be performed – experience he relies on to aggressively defend those facing drunk-driving charges in Colorado. For a free and confidential consultation, contact The Bussey Law Firm, P.C. at (719) 475-2555 today.

Colorado Express ConsentLike several other states, Colorado has a law that requires drivers to submit to chemical testing for alcohol if a police officer requests one on the basis of probable cause to believe the driver is driving under the influence of alcohol (DUI) or driving while ability impaired (DWAI) in Colorado. Colorado refers to this rule as the “express consent” law.

Blood alcohol concentration (BAC) is usually determined by testing either a blood or a breath sample taken from the driver. A BAC of 0.08 percent or higher is considered a “per se” violation of Colorado’s DUI prohibition, while a BAC between 0.05 and 0.08 percent is considered evidence that the driver was DWAI. Both BAC readings, however, can be challenged in court.

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Errors in the blood tests used by the state toxicology lab to determine blood alcohol concentration (BAC) may call some convictions for driving under the influence (DUI) into question, according to a recent article in the Colorado Springs Gazette.

news_sign_4122137.jpgIn May 2012, the state toxicology lab announced that it had undertaken the re-testing of 1,700 samples taken in DUI cases after discovering that a lab technician in charge of testing the samples had not followed proper protocols. The lab also instituted procedures that allow for random re-testing by a separate toxicologist in order to double-check that technicians are following protocols properly.

Colorado law prohibits driving a vehicle if the driver’s BAC is 0.08 percent or higher. At 0.17 percent, a convicted driver is considered a “high BAC offender” and may be required to have an ignition interlock device placed on his or her vehicle at his or her expense. At 0.20 percent BAC or higher, a driver may be required to spend 10 or more days in jail.
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Colorado DUI TestTo determine an individual’s sobriety, highway officers use what is known as the Standardized Field Sobriety Test (SFST). The SFST is a combination of three exams conducted and judged by police officers in a uniform method to secure evidence of an individual’s potential intoxication or impairment and to gain “probable cause” for an arrest. The three exams are the Horizontal Gaze Nystagmus (HGN), the Walk-and-Turn (WAT) and the One-Leg Stand (OLS).

Horizontal Gaze Nystagmus
Nystagmus is the spontaneous jerk of the eye that happens inherently as the eyes move from side to side. When a person is intoxicated by alcohol (and numerous drugs and controlled substances), this movement is typically exaggerated. An officer will test for this by asking a suspect to follow an object with their eyes as it moves across his or her field of vision.
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Preliminary breath testing, or PBT, is often used during a traffic stop by an officer who suspects that a driver may be driving under the influence of alcohol (DUI), but who does not yet have enough information to make an arrest. A driver whose PBT results show that his blood alcohol concentration (BAC) is over 0.08 percent may face arrest and charges of drunk driving. With so much at stake, it’s important to understand how PBT instruments work.

There are three basic types of preliminary breath testing instruments: infrared, wet chemical, and electrical. Each is designed to take a breath sample and calculate the amount of alcohol it contains, but the methods used may differ.

In an infrared PBT device, an infrared beam inside the device is calibrated to “see” alcohol molecules in a breath sample. The device measures the number of alcohol molecules it can “see” versus the total number of molecules in the sample, and then calculates a percentage. A wet chemical device, on the other hand, measures alcohol in a breath sample by measuring the amount of the sample that reacts with chromate salts, which will react to alcohol but not to most other substances commonly found in human breath.
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Police officers in Colorado and elsewhere use three standardized field sobriety tests along with other clues to help them decide whether or not to arrest a driver on suspicion of driving under the influence of alcohol or drugs (DUI). These tests include the horizontal gaze nystagmus test, the one-leg stand test, and the walk-and-turn test.

These tests are difficult to pass, even if a driver is sober. However, police continue to use them because their ability to pick out drivers who are actually impaired is rated quite high by authorities such as the National Highway Traffic Safety Administration (NHTSA). For instance, a 1998 study cited by NHTSA concluded that in 88 percent of cases, the horizontal gaze nystagmus test will correctly identify an impaired driver; in 79 percent of cases, the walk-and-turn test will correctly identify a drunk driver; and in 83 percent of cases, the one-leg stand test will correctly identify a drunk driver. Overall, the study concluded, the standardized field sobriety tests will correctly identify drunk or impaired drivers 91 percent of the time if all three tests are used together.
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Breath testing machines are commonly used to estimate a person’s blood alcohol concentration (BAC) before an arrest. Colorado law enforcement officers typically use an Intoxilyzer 5000, which is a particular brand of breath-testing machine.

All breath testing machines work on the principle that alcohol, once it’s ingested, enters the bloodstream through the walls of the digestive tract. Once it’s there, the alcohol travels with the blood throughout the body, including into the lungs, where the blood drops off carbon dioxide and picks up oxygen as you breathe. Some of the alcohol in your blood leaves the body as you breathe out, along with the carbon dioxide.
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The final judgment on a DUI case isn’t always the end. Colorado realized this in December 2009 when the Colorado Springs Police Department announced that chemist error had inflated blood alcohol content results for, at the time of their announcement, 82 drivers at the Metro Crime Lab.

The flawed DUI tests in Colorado Springs caused quite an uproar, especially for drivers who had been convicted of a DUI between 2007 and 2009. Once this announcement was made, Timothy Bussey of The Bussey Law Firm, P.C., received several calls from clients who were concerned about their cases.

To get to the bottom of the matter, Mr. Bussey filed a request for a Colorado Open Records Act. Although Mr. Bussey did not receive all the information he had hoped, he was, nevertheless, provided with some very useful information. The disclosed information proved that chemist error was the reason for the inflated BAC results. The investigation concluded that a total of 206 DUI tests had been faulty. Of these, nine cases were affected.
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