My brother failed the DUI breath test on his DUI arrest in North Oklahoma. How reliable is the breath test in determining the driver’s blood alcohol level?

Hugo

North Cleveland, OK

The answer to your question, Hugo is extremely long and the subject of great debate. Breath tests are used by law enforcement officers for its ease and convenience, and not on its accuracy. Reliability would depend upon the ability of the breath test machine to accurately measure the presence of breath alcohol. The breath alcohol is supposed to reflect the level of alcohol in a person’s blood. Alcohol in the blood, of course, would produce a depressive effect upon the central nervous system that would lead to intoxication. But even a perfectly functioning breath test machine has problems in producing reliable results as to intoxication.

A simple fact that illustrates a deficiency in the breath test machine is that this machine strictly assumes that the breath temperature is 34 degrees Celsius, which is about 93 degrees Fahrenheit. During your brother’s DUI arrest in North Cleveland, Oklahoma, if his breath temperature is higher than 34 degrees Celsius, his breath test result will be higher than the true level. Because of that, he has to consult a qualified DUI lawyer to help him and further assist him about breath testing and other matters on his DUI case.

My cousin was arrested for DUI in Oklahoma and the breath test result when she was arrested was different when she was tested at the police station. Does this really happen in breath testing, how can this be explained?

Carmi

Midwest City, OK

Yes, this has already happened in countless DUI cases. Any driver who is suspected to be driving under the influence could have a breath test result of 0.15% blood alcohol content (BAC) at the police station, but had a 0.07 BAC when the driver got pulled over. This is because alcohol could take an average of 50 minutes, but could take as long as three hours, to be fully absorbed into the bloodstream and create the peak blood alcohol level. This is very critical in your cousin’s DUI case in Midwest City, Oklahoma if the DUI arrest happened relatively soon after she finished drinking.

Probably, her BAC was still rising when she took the breath test which means that even if her BAC was above 0.08% when she was tested at the police station, it could be well have been below 0.08% when she was actually driving. There’s no law against having BAC that is above 0.08% at the police station; it would only be the BAC while actually driving that counts in DUI cases.

A friend of mine advised me that an expert witness would be of big help in my DUI case here in Oklahoma. What can an expert witness do for me in my DUI case?

Cade

Broken Arrow, OK

If your DUI lawyer decides to call upon expert witnesses to testify on your DUI case in Broken Arrow, Oklahoma, the expert would dwell on the scientific angles based on facts of your DUI case. Experts could testify for you about roadside tests, blood alcohol tests, accident reconstruction, etc.

One of the expert witnesses that your DUI lawyer could call to testify for you would be someone who can explain that your blood alcohol level at the time of driving is different at the time of testing. The use of blood alcohol content (BAC) tests at trial is solely based on the assumption that if you were impaired at the time the test was administered, you must have been impaired at the time of driving. That means that the BAC levels fall as time passes. Expert witnesses could be called to refute this assumption in certain cases. Under some circumstances, the BAC level could actually be rising. In other words, the BAC is higher at the time of the test than when driving. Since this is such a technical area, an expert is necessary to explain it to the jury and raise reasonable doubt as to whether or not you were over the legal limit at the time of driving.

Because of some people I know here in Oklahoma City, Oklahoma who have been arrested for DUI, I would have to be cautious all the time and as much as possible avoid drinking and driving. But if in a very unavoidable circumstance that I would be caught drunk driving, how can a police officer ask a driver to go down the vehicle and conduct some field sobriety tests?

Amir

Oklahoma City, OK

A police officer, first of all should, have a valid point in making a DUI stop. He/she should have a probable cause to believe that you were actually drunk driving and therefore would give a reason for him/her to make a lawful stop. If in case you are suspected by a police officer in Oklahoma City, Oklahoma to be driving under the influence, he/she would observe your driving pattern. If you’re already asked to stop, the officer would then observe physical signs that you are drunk driving. Your appearance and speech would be observed and if you had something to drink, the officer would most likely “smell” alcohol from your breath or inside your car.

If the officer already has a reasonable suspicion to believe that you are impaired based on their training and experience, he/she can continue to the next investigative step. You will then be asked to step out of the vehicle and further observe your physical coordination, speech and general orientation to the location of the traffic stop. He/she would most likely ask you if you know where you are and you will be advised to do some field sobriety tests. If you fail the tests, you will be asked to do a blood alcohol test. If you refuse the test or if your blood alcohol level is above the legal limit, you will be arrested for DUI and be taken to the police station.

Isn’t it unfair that after my drunk driving arrest in Oklahoma, I will have two different DUI charges? Could you explain why there has to be two charges?

Dave

North Cleveland, OK

It’s definitely unfair that after your drunk driving arrest in Oklahoma, you can be charged with two separate DUI offenses. The first offense that you can be charged with is having a blood alcohol content (BAC) beyond the legal limit of 0.08% and the second one is for impaired driving. One reason for creating two different DUI offenses is that a person who is arrested for drunk driving can refuse to take any kind of BAC test. The state of Oklahoma has no evidence in proving the blood alcohol level without the BAC test results. Being charged with two separate offenses allows the state to convict a person for DUI in the absence of BAC test results.

It may be absurd-sounding and it even gets worse because one of the justifications of having two separate laws is that each is based on a different kind of proof. Well, that’s true in theory but it’s quite the opposite in practice. Failing the BAC test can be considered sufficient proof for both charges. In other words, the state does not need any proof of actual impairment to convict you for both charges. But the good news is you will never be punished for both even if you might be convicted for the two charges. That means double the charges doesn’t mean double the sentence.