I don't drink. Ever. A cop says I blew .22. Now what?
April 20, 2012 10:36 AM   Subscribe

I got pulled over and asked if I'd been drinking. I hadn't (I never drink, at all), and happily submitted to a breathalyzer... which the cop said read .22. (He did not let me see the numbers, tellingly.) So, now I have a court date.

It's pretty clear to me the cop lied; for what reason, I don't know. There's no possible reason I can think of that a breathalyzer would have read anything but zero; I hadn't eaten or drank anything other than a bottle of water and a Wendy's hamburger in the last 4 or 5 hours, hadn't used any mouthwash, anything like that.

Yes, obviously I'll have a lawyer. But... what should I expect?
posted by anonymous to Law & Government (12 answers total) 9 users marked this as a favorite
Were you put in the drunk tank? Do you have friends and family that can vouch for your sobriety? Who has your alibi for where you were prior to getting pulled over?
posted by 200burritos at 10:38 AM on April 20, 2012 [1 favorite]

Did you ask to see the numbers, or did he simply not offer them? This is an important distinction that you should mention to your lawyer.
posted by davejay at 10:45 AM on April 20, 2012 [3 favorites]

How about gum? I have heard that xylitol may show up as a false positive. Did they do a subsequent blood test when you were arrested?
posted by kellyblah at 10:46 AM on April 20, 2012

Your lawyer needs to demand ALL the available evidence, which (hopefully) includes dashboard video, reports from other witnesses either at the scene or during the booking process, video that may have been taken in the station, etc.

Moreover, where were you prior to being picked up? Did anyone see you? What do they say you were doing?

Then the lawyer should ask, "Does this look and sound like the acts of a person that's blowing a .22? Where's the slurred speech and lack of coordination? Where's the witness that said they saw them drinking in the minutes leading up to them getting into the car?"

This is just one of many lines of argument to take, of course, but the main point is ... get every piece of evidence. All of it.
posted by Cool Papa Bell at 10:59 AM on April 20, 2012 [7 favorites]

They didn't arrest you and give you a reading from the much more accurate machine at the station? They didn't give you the opportunity to take the breathalyzer again?
posted by The Lamplighter at 10:59 AM on April 20, 2012 [1 favorite]

posted by BrooksCooper at 11:00 AM on April 20, 2012 [6 favorites]

.22 is also *extremely* high. If you appeared to be sober and blew that, I'd think that even the cop would be suspicious that his equipment was malfunctioning.
posted by The Lamplighter at 11:01 AM on April 20, 2012 [5 favorites]

Need more information. When you say "breathalyzer," are you talking about a little handheld device the size of a pack of cards, or a laptop-sized device that was either in his car (unlikely) or in the police station. The former is a portable breath test or "PBT," the latter is a breathalyzer (likely an intoxilyzer). A little googling will give you a ton of information about both. The former is terribly inaccurate, and generally not admissible in court. The latter is quite accurate, and cycles through a number of calibration tests before it kicks out a result. Not foolproof, but pretty darn accurate. It also produces a written report of the testing, the PBT just displays a number for a few seconds.

Also, what were you charged with? DUI? DWAI? Reckless Driving?

There is a world of difference in how this will play out if your .22 was on a PBT and you were charged with reckless driving vs. a .22 on a breathalyzer and charged DUI and held overnight.

If it's the latter, this is going to take a lot more time to fight.

It's also tough to tell you what to expect without knowing your jurisdiction. I prosecuted DUIs for a while. If you were in my courtroom, on your court date you would expect the following:

Assuming .22 on a PBT, and my cop for some reason charged you DUI without requiring a breathalyzer:

Show up on your court date and sit in a waiting room for a long time, likely with your lawyer. Eventually, I'd call your name and your lawyer would come talk to me. He'd give me a hard time for having a DUI with likely no indicia of intoxication (your eyes weren't bloodshot, you didn't smell like booze, didn't slur your speech, didn't fumble with documents, didn't hit anything, etc. this evaluation changes if any of those things were present). I'd agree, and likely just plead you to whatever caused the traffic stop, speeding or whatever. Done. You pay a $150 fine and your insurance might take a small hit.

Assuming the .22 was on a breathalyzer:
Same show up and wait schtick. Looking at the test results, a .22 is VERY HIGH. We're talking functioning alcoholic-skills to be able to operate a car at all in that state -- I don't know if I could turn the keys in an ignition. And, like I said, breathalyzers are quite accurate. Your lawyer would have to convince me the test was wrong for some reason -- with a valid test at that level I'm not dropping the DUI, so I'd have to be convinced. He (or she) would have to do some homework. Even with the evidence, I'd have to set you for a new court date so I could convince my boss that it's a good idea to drop what looks on its face to be a slam-dunk DUI case. It would be an uphill battle, even if you didn't have the indicia listed above, but if the test was actually invalid and you didn't have other indicia, you'd likely get the case dropped, or a deferred judgment (you plead guilty, but it doesn't count unless you screw up again in the next X-months, usually 24).

If convicted with that blood alcohol content in my jurisdiction, you have a 10 day mandatory jail sentence, with a year of alcohol-related probation. Which means 6 days in jail and some alcohol classes. And your driver's license gets yanked for a year or so, but you may be able to get a restricted licenses to get back and forth to work/school.

Anyway, with more details about the circumstances, I can be more detailed about what the expected result would look like, again, assuming your jurisdiction works like mine did.
posted by craven_morhead at 11:07 AM on April 20, 2012 [31 favorites]

Breathalyzers measure any aldehyde molecules in your breath, not just ones resulting from metabolizing alcohol. Had you been working with solvents like paint thinner? The tests will register positive if you have been breathing that kind of fumes.
posted by thelonius at 12:15 PM on April 20, 2012

Yikes, this is one of my recurring nightmare. Of course, in my head I have it all planned out what I'd do (demand a more accurate blood test instead, for starters), but knowing it happens in real life freaks me out a little more. Please just get a lawyer, as soon as possible.

If you are in a jurisdiction similar to California, you should expect that the first court date will be when the charges against you are read into the record, and you will be asked to enter a plea -- of guilty, not guilty, or no contest. Then a date for trial will be set. It's hard to know what exactly you should expect because we don't know where you live (it can make a pretty big difference).

It can be a long process; open communication and transparency with your lawyer will be very important throughout the entire process. The earlier you hire a lawyer, the earlier you can start talking to the DA, which can happen before the first hearing date.

For a case like this, it is possible that your lawyer will need to hire a DUI expert. They are usually forensic scientists that have worked in DUI labs in the past and can testify to the validity of breathalyzers, things like that. The reason I'm advising you of this is that hiring an expert will increase your bill by a lot.

This is not legal advice, I am not your lawyer.
posted by jabberjaw at 12:25 PM on April 20, 2012

IANAL / this is not legal advice / etc - if this goes to trial, maybe you could have people who have known you for a long time testify that you do not drink? It might not be a game changing thing to do, but .22 is really high and if you can get people to testify that you never drink maybe it would sway a jury or judge.
posted by fromageball at 1:25 PM on April 20, 2012 [1 favorite]

They didn't arrest you and give you a reading from the much more accurate machine at the station?

I recently served on Grand Jury, and many of the cases we heard were DUI type things. The portable breath testers were declared by Expert Witnesses to be inaccurate; the Intoxilyzers at the police stations were considered the standard. As others have written, many factors can give a false-positive reading on the cheap handheld devices -- including perfume! Please get an attorney ASAP -- your future depends on it.
posted by RRgal at 2:06 PM on April 20, 2012

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