Does putting tape over a hole on the breathalizer machine affect the results?
When I was given the breat test, the police officer was out of tubes for the machine. He called over the radio for more tubes, and another officer responded to just put a piece of masking tape over the hole. He did so and told me that if i didn't submit to the test that would loose my license for no less than one year. After I failed the test with a 1.36 blood alcohol level i requested another officer give me the same test, but thins time with a tube rather than some tape over the hole. He refused and arrested me. Should I fight it or since it is my first offense, should I just plead guilty and get a deffered sentence. There are also a few other little things that he did wrong in my opinion, but this is the most offensive to what I believe are my rights.
1 Answer from Attorneys
Re: Does putting tape over a hole on the breathalizer machine affect the results
The manufacturer of the BA machine provides certain fairly strict protocols [instructions] with the machine. These must be followed faithfully, or the machine results may be in question. If there is a question about the legitimacy of the BAT, then it is resolved in favor of the defendant. The machine results must be reliable beyond a reasonable doubt.
There are many things which can affect the BAT other than breath alcohol. Many volatiles such as chemicals in the substance which makes tape "stick" could affect a BA reading.
Bottom line, I don't think the "tape over the hole" protocol will pass constitutional muster in a court of average intelligence [you may not get one of those] and I would certainly make an issue of it. I believe you have good grounds to question the test and put the results into sufficient doubt that your case is eligible to be dismissed. Beware of the testimony of the officer concerning your condition, however, as that is still admissible even though the BAT is not.
If you have much at stake, such as being required to drive for a living, you will want to consult a lawyer in your area who defends DWI cases in the court in which you must appear. Representing oneself usually ends in disaster in situations such as this. Despite what you have seen on TV, there is more to it than righteous indignation.
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