Legal Question in DUI Law in Minnesota

Re: Accuracy of breathalyzer

This sounds like a technical case. I don't think there is any way you could do this without an attorney (and a doctor who can support your

position). If you live in south central Minnesota, I'd be happy to

talk to you about this in my office at no charge.

Herbert C. Kroon

Attorney at Law

Chesley, Kroon, Chambers, Harvey & Carpenter [email protected]

Re: Accuracy of breathalyzer - GERD

GERD or acid reflux disease can cause a false positive result on an Intoxilyzer breath-alcohol machine. It can do so if the person is symptomatic, with stomach contents coming up into the throat and mouth within 20 minutes of blowing into the Intoxilyzer machine. This can cause what is known as "mouth alcohol" to contaminate the breath sample, and add alcohol vapor to that coming from the lungs. The Intoxilyzer in Minnesota has countermeasures designed to detect "mouth alcohol," including a 15-20 minute "observation period" the police officer is supposed to perform (rarely done properly), a "slope detector" of declining in alcohol level in each sample breath, and two subject breath samples separated by about three minutes. Despite these attempted safeguards, mouth alcohol is not always detected by the machine, due operator error, machines vulnerabilities, and circumstances of subject.

I do not believe an accused person could win a DWI case like this without a lawyer, and an expert witness to testify about the Intoxilyzer machine, and proper testing procedures.

In my opinion the DWI laws in Minnesota are unfair and excessively place a priority on ease of enforcement and expediency, above and at the expense of fairness and justice. To get a more level playing field, you need a good DWI defense lawyer.

Call me if you would like to discuss me helping you.

Re: Accuracy of breathalyzer

Matt,

This issue can ONLY be won if you have an expert witness testify about GERD and how it can affect an Intoxilyzer machine. Most people would not be comfortable with acting as an attorney and giving proper notice to the opposing counsel about the nature of your defense, the extent of your expert witness' testimony, and other discovery rules. Plus, you need to file an implied consent petition for judicial review, which comes easier with some technical know-how. Anyone has the right to represent themselves in a criminal/civil matter, but this is your only chance to attack this thing. Your chances of winning this defense without an attorney are about 5%, and even with an attorney it is less than 50%. Liek the other attorney mentioned in the first reply, the machine has built in safeguards to protect against false reads from mouth alcohol. The judge needs to be convinced that those safeguards failed you (or at least they could have). Most DWI's do not have any good defenses, so you should consider yourself fortunate in that regard. We have already discussed your case in some detail via telephone, and I'd be happy to discuss this with you some more.