Gum spit out 3 minutes before test
I was pulled over for potentially running a red light.
I was told the portable breatherlizer test ''was just between him and me'' and would not appear on my record. ''It was just to help us what to decide what to do next''. I asked for result and he said we would discuss later.
I was told to step out of the car and perform roadside tests. Was not told they were voluntary. I told the officer that I had very bad swollen knees and could not get heel toe together nor balance very well. I did the counting backwards perfectly. 4 marks on Nystagmus, 5 on walk and turn, 3 on one leg stand
Arrested. Officer broke breathelizer so transported to nearby jurisdiction. Arresting officer didn't have his code for the machine so another officer had to administer the test. 3 minutes before test, I asked arresting officer if he wanted me to spit out my gum. He said yes.
Test 3 minutes later BAC .048
Booked for DWAI and charged with ''following too closely and failing to signal'' (I was pulled over for red light)
How strong is my defense?
2 Answers from Attorneys
Re: Gum spit out 3 minutes before test
It depends what charge you are defending.
Re: Gum spit out 3 minutes before test
The DWAI charge will be difficult for the prosecution to prove. The test comes up below the cut off line and that helps. The roadside tests are likely worthless because of your knees. The HGN portion of the test is often done incorrectly. It may be difficult to win the following too closely, but that charge is far less important to your record.
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