Maryland Breathalyzers in DUI Cases
Sometimes breathalyzers are reliable instruments, and sometimes they are not. There are lots of factors on individual breathalyzers that can cause them to be less reliable and that includes lack of proper maintenance, lack of proper calibration, certifications, and improper testing procedures in an individual case. Then there are going to be more general problems that are going to make breathalyzers tests more inaccurate.
Calibration of Breathalyzers
There are two levels of calibrations for the breathalyzers used in Maryland DUI cases. One is the machine self-check that it does for every test. The machine holds a standard simulator solution in a little reserve vault and has to self-check. That solution is made to be a .08 breath alcohol content and it needs to test within a 10% accuracy, either high or low. That needs to tell us either between .072 and .088 for that to be valid.
The breathalyzer machine will run that self-check both before and after an evidentiary breathalyzer test. The first thing that the machine does when it turns on is run a sample and then the last thing that the machine does before shutting off after the breath test is run that sample again. That is one form of calibration and that is done repeatedly throughout the night as the machine is used.
The other form of calibration is more time consuming and the officer who is in-charge of maintaining the breathalyzer machine does that. This kind of calibration is usually done once every six months. In that, the machine tests a couple of different samples of varying breath alcohol contents to make sure that the calibration has not slipped at higher numbers or lower numbers and it is consistent throughout. In terms of whether or not that they are actually performed, all of the breathalyzer machines have maintenance logs and so if the breathalyzer testing and calibration has not been performed on a monthly schedule that is something that can be discovered by one’s attorney and can be used to suppress the results of the breath test.
Challenging Breathalyzer Results
A breathalyzer result that is inconsistent with all other observed indicators of impairment—or any breathalyzer result—can be challenged in the court. For example, a person might present a rising blood alcohol defense. The difficulty and the likelihood of accepting that challenge is going to vary on a case-by-case basis, however, if the challenge is successful then the result is the suppression of the breathalyzer test. In cases where there is a breathalyzer test, getting that test suppressed is going to be one of the most important defense strategies in handling that case.
Things to Remember about Breathalyzers
For a first offender, the penalties for a high blow of .15 or higher are almost exactly the same as the penalties for first refusal. On a first offense, the penalties for a high blow will be a 90-day license suspension or one-year participation in the MVA’s ignition interlock program. The driver can choose which of those sanctions to take.
Penalties for a first refusal are going to be a 120-day suspension or the exact same one-year participation in the ignition interlock program. It is virtually indistinguishable between high blow and a refusal. Generally speaking, it is in the individual’s best interests to refuse a test rather than submit a breath sample in excess of .15.
Penalties on the license will be extremely similar and if they are going to be doing interlock the penalties are exactly the same. I do not think people are really aware of that. I think when people hear the officer tell them that they are automatically going to lose their license for 120 days if they refuse that will cause them to blow into a breathalyzer test and it may not have been actually in their best interest to do so.