DWI - The Testing Procedure Must Be Done Properly
Much of the focus on a DWI defense pertains to the basis for the stop and whether probable cause existed to arrest the defendant. Once that occurs, the officer takes the defendant back to the station and administers an official test – usually a breath test – to determine the defendant’s alcohol concentration level. This last part of the process can often be overlooked. But, it shouldn’t – because the state must prove that the test result is reliable and trustworthy in order to convict the defendant.
Case law dating back decades dictates that, when offering a chemical test into evidence, the State must demonstrate that “the test is reliable and that its administration,” at the time of the testing, “conformed to the procedures necessary to ensure reliability.” This means the State must have evidence establishing the test was conducted by a certified operator of the testing machine used and that the machine was working properly. If the State can lay that foundation, then the defendant must offer evidence as to why the test is otherwise unreliable – such as the proper procedures weren’t followed.
Legal jargon aside, what does this mean? It means that you or your attorney must take a hard look at how the test was conducted. The testing procedures involves much more than just simply having the defendant blow into the machine. There must be a sufficient waiting period in which the operator watches the defendant to ensure he or she doesn’t burp, belch, or spit up, etc. It requires that the machine be calibrated correctly and in proper working order. And it requires that the defendant provide two proper samples after a sufficient time between the two. These are just some of the procedures that must be followed – but sometimes aren’t.
If you are charged with DWI, it is imperative that you hire a DWI defense attorney that knows what to look for and how to fight for you.