Challenging the BAC test as part of your DUI defense
West Virginia has three approved BAC tests for measuring a driver’s blood alcohol concentration --breath, blood or urine. West Virginia law allows each law enforcement department to determine which method to use as its secondary chemical test, although all 55 counties in West Virginia have chosen the breath test as its preferred method. Once a law enforcement agency has designated its chosen test, the driver must submit to that test – agreeing to submit to one of the other tests does not satisfy the West Virginia DUI implied consent laws.
Anyone who operates a motor vehicle in West Virginia impliedly consents, by virtue of having accepted a driver’s license, to take a chemical test to determine their blood alcohol concentration (BAC) if their vehicle is stopped by a police officer who has reasonable suspicion to stop the driver and who believes the motorist is driving under the influence of alcohol or drugs.
Any approved BAC test is considered to be legally reliable evidence by the police and the courts, however, they are subject to challenge. A breath testing machine has to be tested periodically and the person administering the test must follow certain protocol and procedures.
You do have the option of refusing to take any breath or chemical test, but refusal to take the secondary chemical test can lead to an enhanced suspension of your driver’s license, unless you had a legally valid excuse for not taking it or the officer failed to follow proper procedure (link to FAQ page).
Because of its ease in administration, the secondary chemical test used in West Virginia is a breath machine. The device used is the EC/IR II, manufactured by Intoximeters, Inc. A troubling aspect of its use is that Intoximeters, Inc. refuses to sell the device to any private individual or organization that is not a government agency or that supports law enforcement. This is an interesting policy that a seasoned DUI attorney could exploit if your case should go to trial by questioning why a company should fear having its device tested by an opposing or independent body.
Regardless, an experienced DUI attorney can challenge the efficacy and accuracy of the device by seeing if it has been calibrated correctly and if the administration of a test was done according to strict guidelines, among evaluating a variety of other reasons that could impact the outcome.
Further, a blood alcohol test can be influenced by any number of factors that would cause it to register a false high reading. People suffering from GERD (gastrointestinal reflux disease) or acid reflux can cause alcohol from the stomach to move back to the throat or mouth.
People who work around toxic chemicals may have these in their lung tissue, which can also cause a false high reading.
Decaying food particles, mouthwash, cold medicines containing alcohol can have latent alcohol that can increase the breath test results. Other factors such as variation in breathing techniques can affect a test result, or persons with lung conditions such as bronchitis, asthma or chronic obstructive pulmonary syndrome may be physically unable to take the test.
Urine testing, although approved, is generally considered not as accurate and police departments rarely use this method of testing. If it is used, another test is usually administered to confirm the findings.
A blood alcohol test is generally considered the most accurate method of measuring blood alcohol when it is done via properly conducted gas chromatography. These tests are usually done at the WV State Police Crime Lab, although blood samples are usually collected at a hospital by a certified technician who must follow certain protocol and evidentiary procedures known as the “chain of evidence” by mixing the samples taken with a preservative and then placing it in marked vials. If there are inconsistencies or the chain of evidence is not adhered to as required, an experienced West Virginia DUI lawyer can argue that the test was contaminated or that the vials cannot be shown to belong to the person charged with the DUI.
Blood alcohol testing done at a local hospital normally uses the process of enzymatic testing, or serum blood (partial blood) testing, where it is the presence of an enzyme that is detected rather than the alcohol contained in the blood. Since the enzyme being tested can also appear in the presence of substances other than alcohol, the test results may not have determined the actual alcohol content of the blood.
Each method of measuring your blood alcohol is subject to a variety of factors and complicating procedures that can lead to false high readings, contamination, testing of other substances that did not affect your driving, or failure to follow the proper procedures resulting in samples that cannot be proved to have come from you.
An experienced and resourceful attorney like West Virginia DUI attorney Todd La Neve has often found scientifically accepted bases for attacking a BAC result. If you find yourself charged with a DUI, contact Todd La Neve for a FREE INITIAL CONSULTATION.
