Assuming That If The Breath Result Is Greater Than .080, The Case Is Lost.
This is the single greatest error made by uninformed defendants. The machines used in Utah are prone to large inaccuracies that are well known to the defense bar but largely unknown to the public; why assume that the machine is accurate? To touch on just one, Utah machines do not measure breath temperature but rather assume an average of 34.0 C; however, for each degree over that preset average, the indicated result will be 7% greater than the actual value! To bring that idea home; breath temperature has been shown to constantly vary between individuals; a person with a fever, or a woman during her monthly cycle will generally have an increase of 2 degrees of more over the baseline of 34.0 C – that’s a 14% differential. Coupled with the manufacturer’s stated 5% internal variance and 2% for testing solution, that’s a whopping 21% right off the top. Now, does that .101 look a little better? Amazing how just a little information is empowering.
Currently, there are a number of Utah DUI cases where defendants are challenging the accuracy of the machines in Court and in the coming year it is likely that decisions will be handed down that affect the admissibility of certain breath results. In our view these challenges are promising and perhaps it is no surprise that we are authoring more than one of them; therefore, if you have a result below .150 or so, it pays to wait it out and litigate your case, or at the very least have it analyzed. Once you learn about how shoddy the system is, you will likely see your situation in an entirely different light.
Lastly, because the machines use averages for both partition ratio and breath temperature, it is possible you fall into a group that blows as much as twice as high on a breath machine than your actual blood alcohol level. At the very least you should not consider pleading guilty to a DUI until you have ruled this possibility out; it is just illogical behavior. At the very least, call our office free consultation to speak with an experienced DUI defense attorney.