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If I Took a Chemical Test, Can a Kona DUI Attorney Still Help Me?

Back in ye olden days, this question was not as critical as it is today. Prior to the mid 1990s, a failed chemical test was only a presumption of intoxication. So, a Kona DUI attorney could use the full array of intoxication defenses.

But then, the DUI crackdown began, and everything changed. This crackdown included a lower BAC limit, increased use of roadside checkpoints, Ignition Interlock Device requirements, and most significantly for purposes of this blog, tougher laws.

Specifically, Hawaii lawmakers approved a per se DUI statute. Now, people who fail breath or blood tests are intoxicated as a matter of law.

Therefore, in test cases, a Kona DUI attorney must establish that the test results were wrong or that officers improperly obtained these results. As a result, test cases are difficult, but not impossible, to defend.

Hawaii County Breathalyzer Basics

During DUI trials, police technicians dazzle jurors with tales of electrochemical conversions and fuel cell triggers. Phrases like these imply that the Breathalyzer is a sophisticated, high-technology device.

Portable Breathalyzers do have lots of bells and whistles. But take away all the fluff, and the Breathalyzer is essentially a 1950s Drunk-O-Meter. Both these devices take breath samples, detect the ethanol particles in the breath, and generate a visual result. The Drunk-O-Meter changed colors, and the Breathalyzer generates a BAC estimate.

As a brief aside, assume you went to a doctor and the doctor said he had to X-ray your bones. If the doctor rolled out a Korean War-era machine with a few added features, would you have very much confidence in its results? For that matter, would you have very much confidence in the doctor?

Back to the blog. Attentive readers probably noticed that this gadget is a Breathalyzer and not a Bloodalyzer. The Breathalyzer measures breath alcohol levels, which mean nothing in terms of Hawaii law. A computer uses the breath sample to estimate the blood alcohol content level. That extra step gives Kona DUI attorneys the opening they need to challenge breath test results.

How Kona DUI Attorneys Beat the Breathalyzer

During cross-examination, police technicians reluctantly admit that the Breathalyzer has an overall margin of error. That margin is even larger in the following situations:

  • Mouth Alcohol: As part of the aforementioned DUI crackdown, courts watered down the pre-test observation requirement. Judges meant for this change to help prosecutors, but ironically, it probably helped attorneys even more. Unless someone watches the defendant, there’s no way to know if the defendant burped or vomited. Those actions flood the mouth with ethanol particles from the stomach, thus skewing the BAC estimate.
  • Acetone Levels: Everyone has acetone in their bodies. Some people, including smokers and diabetics, have elevated acetone levels. SInce they are chemically similar, the Breathalyzer thinks that acetone particles are ethanol particles.
  • Unabsorbed Alcohol: Generally, liquid goes from the stomach to the blood. But most alcohol goes from the stomach to the liver to the blood. Because of this slower process, if the defendant had been drinking within an hour or two of the test, much of that alcohol has not gone to the blood. The Breathalyzer fails to account for this delay, so once again, the BAC estimate may be artificially high.

To drive home these flaws with the jury, many DUI/DWI attorneys partner with degree chemists. To most jurors, these individuals are much more credible than the Breathalyzer techs that Hawaii County prosecutors usually rely on.

The Amount of Intoxication has Become Far More Important

Breathalyzers and blood tests have many flaws. Biased readings to the high side are commonplace, often resulting from the improper application by the officer, inaccurate instructions to the detainee, and faulty equipment. No science exists to pinpoint a precise BAC. Like other machines, BAC measurement devices have a margin for error.

If the reading against you is very close to the legal limit, your lawyer may be able to argue you were not impaired and below the limit despite the reading. Also, your attorney can present evidence that your case is misclassified as a “highly intoxicated” DUI instead of a regular one.

Hawaii’s laws now call for mandatory 48 hours to ten days behind bars for highly intoxicated DUI, plus license revocations from between six months and three years. The law defines highly intoxicated DUI as a BAC above 15 grams per millimeter of blood or 15 grams per 210 liters of breath. If you test close to these standards, chances are good that you were charged inaccurately, and your lawyer can argue for a reduced charge or dismissal.

DUI Blood Test Basics

Largely because they eliminate the breath test conversion middleman, DUI/DWI blood tests are much more reliable than breath tests. In fact, the blood test conviction rate is above 95 percent in most jurisdictions.

Additionally, the person who extracts a blood sample is usually a doctor or a nurse. These individuals have a lot more credibility than a police technician.

Beating the Blood Test in Hawaii

However, all hope is not lost. In some cases, attorneys can successfully challenge blood test results or even exclude them altogether.

Unlike Breathalyzers, blood tests preserve the sample. So, a Kona DUI attorney can order a retest. This second test often yields different results from the first one.

There are procedural defenses as well. Police officers must have search warrants to extract blood samples, and these warrants must be based on probable cause. If the defendant refused to perform field sobriety tests, or officers jumped the gun and skipped these tests, probable cause is a problem.

There may also be chain of custody issues. Generally, blood samples must travel from clinics to police stations to courthouse evidence rooms. If there is a gap in the complex chain of custody, an attorney may be able to exclude the sample.

Count on Experienced Kona DWI Lawyers

If you failed a chemical test, you are not automatically guilty. For a confidential consultation with an experienced Kona DWI attorney, contact Olson & Sons, L.C. We routinely handle matters in Hawaii County and nearby jurisdictions.