Warning: Personal breath tests and sleazy DUI advertising
While this DUI blog is normally focused on new caselaw and statutory developments from around the country, an issue has come to my attention that needs immediate attention from both DUI lawyers and the public.
Some DUI attorneys are starting to advertise and even sell personal breath test devices. It has come to my attention that these attorneys are endorsing these devices as a safe and effective way to avoid a DUI, even through the use of local media.
If you are planning on drinking and then driving, DO NOT rely on a personal hand-held breath test device. They are not accurate and could set you up to be arrested.
I have a serious problem with a DUI defense lawyer selling or giving away personal breath test devices. Here are the problems from my perspective:
- How can a lawyer argue that breath test technology is unreliable if he sells them? A DUI defense lawyer's job is to challenge the validity of breath testing technology. Anybody who is truly knowledgeable about breath test devices knows that the technology is unreliable at its best. We also know that hand-held breath test devices are extremely inaccurate. In most states, the results are not even admissible in court. For a DUI lawyer to endorse such a device undermines that lawyer's credibility to later argue in court against better breath test technology.
- Selling breath test devices makes other attorneys look bad because other attorneys who are doing their job are constantly making arguments against the breath test. Any lawyer who cares about his or her clients and has experience in the trenches of DUI court will be offended by this gimmick.
- It exposes the public to actually getting a DUI by relying on the results of an inaccurate device. It also, at least tacitly, endorses having drinks and then driving. It creates the impression that if the devices says you are okay to drive, then you are legally safe from a DUI. This is a severely misleading notion. Even if the device is totally accurate (which it isn't) at the time of the test, you may still be in the absorptive state of alcohol metabolism. If you are, then from the time you blow into the machine to the time you get pulled over for DUI, you may well absorb enough alcohol into your system to be above the legal limit. The only way to be sure to avoid a DUI is to not drive at all after drinking.
- Advertising a conflict of interest? These devices are actually being sold with law firm's names, logos and phone numbers engraved on them. If you use one, then get a DUI and call that firm, they essentially provided you with your defense (a poor one... "I relied on the hand-held breath test device). If you then call them to defend you (which they are inviting you to do by putting their name and number right on the thing), do you think your best interests will be served by that firm?
There are some disgusting marketing practices out there, and in my opinion this is the one, in the DUI arena, that takes the cake for 2008.
Defense expert can not rely on preliminary breath test result
In most states the preliminary breath test (PBT) result is not admissible in DUI cases. The PBT is typically inadmissible because it is inaccurate. However, when a PBT is exonerating, and an evidentiary breath or blood test is incriminating, the defense may want the PBT admitted into evidence.
The Opinion: The Court of Appeals of Wisconsin in State v. Fisher, decided against the admission of a defense-favorable PBT on 9/10/08.
Quotes: A general description of the difference between a PBT and an evidentiary breath test:
Unlike the Intoximeter, the PBT is not tested for accuracy either immediately before or after a test. The intoximeter is a “quantitative” test and the PBT is a “qualitative” test.
Clearly, the former test calls for an accurate “measurement” that is, after all, the definition of the word “quantitative”-something “involving the measurement of quantity or amount.” Webster's Third New Int'l Dictionary 1859 (3d ed.1993). A qualitative analysis, as any chemistry major would know, merely determines the constituents of a substance without any regard to the quantity of each. Id. at 1858. Thus, as succinctly defined in the administrative code, the qualitative breath test is for the purpose of determining only whether alcohol is present or not.
Quotes: Why the defense expert was not allowed to proffer an opinion based on the PBT:
Dr. Steele can compare the PBT result with a blood test result 100 times and be convinced as to the reliability of his absorption curve analysis. But is his analysis valid? We must answer the question “no” because Fischer's PBT result is not an empirically tested measurement.
Why allow an expert, one with a science background, to rely on a test whose accuracy at the time of the test cannot be authenticated as a foundation for an opinion? That makes no sense.
Discussion: In DUI cases experts often “backdoor” inadmissible evidence into their opinion. Experts on both sides of the “v” do it. Both prosecutors and defense lawyers at times knowingly allow and even encourage such testimony. In this case, as an example, a defense lawyer could ask the expert generally:
“Given your review of the materials in this case and your whole knowledge of the facts, do you have an opinion as to whether it is possible that Fisher could have been below the legal limit.”
Without qualifying that the expert can only form such an opinion by presuming that the PBT is accurate (an assumption that no honest expert can make), the answer would be garbage and the legal ethics of the question questionable.
