Samudrala Law‘s general Strategy to Beat Chemical Evidence is designed to shift the jury’s focus away from the defendant to the actual tests used to measure chemical evidence. Samudrala Law will convince the jury that the breath, blood, or urine test used was not accurate and reliable beyond a reasonable doubt. More specifically, Samudrala Law will attempt to establish that the machines used to gather these results were not well-maintained, not calibrated properly, not operated correctly, not based on solid scientific. principles, etc. Generating doubt about these tests and the machines used to gather results would often result in acquittals despite damning testimony of the arresting officer.
Unlike with the Strategies to Beat Driving Symptoms, the Strategies to Beat Physical Symptoms, the Strategies to Beat Field Sobriety Tests, and the Strategies to Beat Incriminating Statements, Samudrala Law has to cross-examine more than just the arresting officer when developing the Strategies to Beat Chemical Evidence. Samudrala Law has to also cross-examine a forensic blood-alcohol expert who will be called forward by the prosecution to convince the juries that the breath, blood, or urine tests are infallible. With a forensic blood alcohol expert on Samudrala Law team who has testified in over 2500 DUI/DWI cases, our experienced team can predict what this expert witness will say and can tailor an effective defense accordingly.
Below are strategies Samudrala Law will use to discredit the blood alcohol expert witness and debunk chemical evidence:
GENERAL STRATEGIES TO BEAT CHEMICAL TEST
The Rising Blood Alcohol Defense When an individual drinks alcohol, it first goes into the stomach and sits there for some time before it is fully absorbed into the blood, thusly raising your blood-alcohol concentration (BAC). Absorption can take anywhere from 30 minutes to 3 hours. Since most blood alcohol tests are administered between 45 minutes to 1.5 hours after the actual traffic stop, the arresting officer must make an educated guess using retrograde extrapolation as to what the BAC was back when the traffic stop actually happened. If the accused continued to absorb alcohol after the time of the stop, his/her BAC at the time he/she was driving may have been only .07% even though he/she tested at .10% at the time of being tested. It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of driving, not at the time of being tested.
This DUI/DWI/Drunk Driving defense strategy attempts to demonstrate to the jury that the BAC of the defendant was below the legal limit when he/she was pulled over but measured above the legal limit when the chemical test was administered because the police took so long to give the chemical test allowing any alcohol sitting in the stomach to absorb into the blood. Based on these scientific principles, it is not uncommon to prove that an individual with a breath test of 0.15% was actually below the legal limit when he/she was pulled over an hour or so before the test was administered. Below are two Blood Alcohol Curves that help demonstrate this point:
Figure 1 represents the body’s Blood Alcohol Concentration when alcohol is consumed rapidly and immediately.
Figure 2 illustrates the results of alcohol consumed slowly over a prolonged period of time the second curve.
The Operator Error Defense
This DUI / DWI/ Drunk Driving defense strategy focuses on the fact that the personnel administering these chemical tests, from the arresting police officer to the nurse at the hospital, may have failed to follow proper protocol and procedure, which could lead to a false high BAC reading. Proper protocol and procedure are outlined in the California Highway Patrol Manual that is supplied to every police officer and the California Code of Regulations under Title 17, Chapter 2, Subchapter 1, Group 8.
The Average Person Defense
This DUI/DWI/Drunk Driving defense strategy focuses on the fact that the defendant might not be what is considered the “average” or standard individual that is used as a basis for all these tests; as a result, various biological functions of that person will not fall exactly within statistical norms possibly skewing test results against the defendant.
The Tolerance Defense
This DUI/DWI/Drunk Driving defense strategy points out studies that have demonstrated that the blood-alcohol concentration of an individual is a poor measure of intoxication due to each individual have a different level of tolerance. A number of studies have indicated that alcoholics and heavy drinkers tend to develop a high tolerance to the effects of alcohol. This strategy is especially powerful if the defendant has a history of alcohol abuse because it can be argued that the blood-alcohol concentration may not truly reflect his/her degree of impairment.
The Gender/Sex Defense
This DUI/DWI/ Drunk Driving defense strategy points out that men are generally less susceptible to the effects of alcohol than women. A number of studies have indicated that men have significantly higher amounts of an enzyme that provides a protective barrier in the stomach by breaking alcohol down before it is absorbed into the blood.
The Retrograde Extrapolation Defense
This DUI/DWI/ Drunk Driving defense strategy points out the weakness in the retrograde extrapolation. Since the defendant’s BAC is taken at the time he/she was tested at the police station or hospital, the arresting officer must relate the over the limit blood-alcohol concentration back in time to when the defendant was driving using retrograde extrapolation. It is scientific sounding term but is no more than an educated guess that is dependent upon a number of premises and source of errors, one of which is that the defendant follows universal and predictably rate of absorption and elimination while ignoring the defendant’s gender, food intake, drinking patterns, etc.
The Radio Frequency Interference (RFI) Defense
This DUI/DWI/ Drunk Driving defense strategy focuses on the fact that RFI can alter blood test results. Basically, any electrical apparatus is capable of emitting electromagnetic waves, which can interfere with the electric circuitry of any other apparatus. The availability of RFI detectors from the various breath-testing machines’ manufacturers discredits this argument.
The Power Surge Defense
This DUI/DWI/Drunk Driving defense strategy focuses on the fact that all facilities where chemical tests are administered should have their power circuits grounded and surge-protected. A spike or surge in the power where a test is being administered could lead to a false high result.
BREATH TEST STRATEGIES
The Breath Test Title 17 Defense
This DUI/DWI/ Drunk Driving defense strategy focuses on Title 17, Chapter 2, Subchapter 1, Group 8 of the California Code of Regulations, which among other things outlines the rules and regulations for the collection of these breath-test samples. Among other regulations, Title 17 requires that all breath-testing machines must be calibrated every 10 days or after every 100 uses, whichever comes first. The DUl Defense Group will demand police records to make sure that this was done because it not, the breath-testing machine results may be thrown out of court
The Breath Sample Contamination Defense
This DUI / DWl / Drunk Driving defense strategy focuses on the fact certain substances found in the mouth or in the environment can produce a false high BAC reading. Some mouth contaminates that might cause a spike in the readout are smokeless menthol tobacco, mints, lozenges, denture adhesive, lip balm, breath spray, recent dental work, asthma inhalers, and pepper spray. Some environmental contaminates that might cause a spike in the readout are certain solvents in the workplace, hair spray, nail polish, and airplane glue. Because of these contaminates, the arresting police officer is to wait 15 minutes before collecting a suspect’s breath sample.
The All Machine Are Infallible Defense
This DUI/DWI / Drunk Driving defense strategy illustrates the fallibility of the breath-testing machines by convincing the jury that these machines are capable of malfunction and error like any other machines. It is always good to compare these machines to household appliances such as dishwashers, vacuum cleaners, cars, etc. because everyone in the jury has probably encountered at least a problem or two with these.
The 99% Accurate Is Still Not 100% Accurate Defense
This DUI/ DWl / Drunk Driving defense strategy focuses that fact that many forensic blood-alcohol experts will sometimes testify that the breath-testing machines are not 100% accurate but ARE 99% accurate in an attempt to keep any reasonable doubt from creeping into a juror’s mind. This 1% difference is still enough of an error for the DUI/ DWl Defense Group to plant a seed of reasonable doubt in a juror’s mind. The DUI / DWI Defense Group will bring a clear bottle of aspirin into court, hold it up for all the jury to see, and point out that there are 100 tablets inside each identical in appearance. The DUl / DWl Defense Group will then ask the members of the jury to consider that if 99 of these tablets were aspirin with the last one being poison, would anyone of them take one of these pills if he/she had a headache. The answer would be no thus demonstrating that even a 1 % error cannot be ignored.
The Margin of Error Defense
This DUI / DWI Drunk Driving defense strategy emphasizes the various margins of error actually recognized in breath-testing analysis. The inherent error for breath-testing machines is plus or minus 0.01% blood-alcohol concentration (BAC); as a result, a reading of 0.08 can really be either 0.09% (plus 0.01%) or 0.07% (minus 0.01 %) BAC. This error is big enough to create a reasonable doubt because in the case of the latter result, the driver would not be considered drunk.
The Infrared Defense
This DUI / DWl / Drunk Driving defense strategy points out that the infrared spectrophotometric method of analysis, which is used in a majority of breath-testing machines, is nonspecific for alcohol. It will often falsely register other chemical compounds as ethyl alcohol.
The Warranty Defense
This DUI / DWl / Drunk Driving defense strategy further expands on The All Machine Are Infallible Defense from above which compares breath-testing machines to everyday machines that jurors use that like all machines eventually malfunction and breakdown. The terms of the warranty should be made clear to the jury. The fact that all breath-testing machines have warranties that are conditional and often for only one-year implies that the manufacturer expects their breath-testing machine to breakdown after a year. How can a jury trust that the results from these machines if the manufacturer of these machines doesn’t even trust them to last beyond a year without repair?
The High BAC Defense
This DUI / DWI / Drunk Driving defense strategy can be utilized when the chemical evidence indicates the defendant was drinking beer and his/her blood-alcohol concentration was .20% or more. This strategy utilizes a little show-and-tell display of how much alcohol actually has to be consumed for someone to have such a high BAC. If the jury visually is made aware how much liquid (and foam) a 12 pack of beer actually is, they will have a hard time believing that such a large quantity of liquid could fit in any stomach, As result, the jury will assume that the test results were incorrect.
The Too Small of a Specimen Sample Defense
This DUI / DWl / Drunk Driving defense strategy focuses on how small the amount of alcohol that is actually tested. For example, the lntoxilyzer 3000 captures only 400 cubic centimeters of a suspect’s breath. These tiny sample amounts make it difficult beyond a reasonable doubt for jurors to believe that these breath-testing machines could accurately measure how much alcohol is in one’s blood.
BLOOD TEST STRATEGIES
The Blood Test Title 17 Defense
This DUI / DWl / Drunk Driving defense strategy focuses on Title 17, Chapter 2, Subchapter J, Group 8 of the California Code of Regulations, which among other things outlines the rules and regulations for the collection of blood-test samples. Title 17 requires that all blood samples shall be collected using sterile, dry hypodermic needles or clean, dry vacuum type containers with sterile needles Failure to adequately sterilize the instruments involved can lead to false high results. Title 17 also requires that the suspect’s arm be sterilized before blood is drawn. The sterilization solution used here can contain up to 70% alcohol, which can find its way into the blood sample when the needle is either inserted into the arm or withdrawn from the arm.
The Blood Sample Contamination Defense
This DUI/ DWI / Drunk Driving defense strategy focuses on the fact certain substances found in the mouth or in the environment can produce a false high BAC reading. Some mouth contaminates that might cause a spike in the readout are smokeless menthol tobacco, mints, lozenges, denture adhesive, lip balm, breath spray, recent dental work, asthma inhalers, and pepper spray. Some environmental contaminates that might cause a spike in the readout are certain solvents in the workplace, hair spray, nail. polish, and airplane glue.
The Fermenting Blood Defense
This DUI/ DWl / Drunk Driving defense strategy claims that the possibility of fermentation, the naturally degenerative process that produces alcohol that would produce a false high reading, always exist. Also, the correct or perfect amount of preservative to be added to a blood sample to prevent fermentation is still a matter of debate with most forensic blood experts. Incorrect amounts could allow fermentation. Also, improper storage, such as being left in the sunlight or not . constantly refrigerated, can lead to fermentation and thusly a false high reading.
The Hematocrit Defense
This DUI/ DWl / Drunk Driving defense strategy focuses how the hospital collected the blood-test sample. Whole blood is composed of cellular material and plasma (mostly water). Hospitals test whole blood or plasma. Hematocrit is the % of your whole blood that is made up of cellular material. If an individual has a Hematocrit of 47, then his/her blood is 47% cellular material and the remaining 53% is plasma. The normal range is 47 for men and slightly lower for a women. Now if the defendant had a Hematocrit of 60 and the hospital-tested plasma, then a higher blood-alcohol concentration will result. This occurs because alcohol gravitates toward the plasma so when the plasma sample is collected the amount of alcohol present is the practically the same as in a sample of whole blood; consequently, the alcohol makes up a higher percentage of the plasma sample than it would of a whole blood sample. The higher the Hematocrit, the higher the SAC results. The DUI/DWl Defense will find out what kind of blood-test sample was collected whole blood or plasma and will motion to throw the evidence out of court if plasma was used.
The I.V. Fluids Defense
This DUl / DWl / Drunk Driving defense strategy focuses on the fact that alcohol gravitates toward liquid in the blood. When an individual consumes alcohol, it enters your blood stream and body tissues as well. If you increase the amount of liquid in the blood as a result of I.V. fluids, that liquid tends to pull more alcohol out of the tissue and artificially increases the individual’s BAC.
The Zinc Deficiency Defense
This DUl / DWl / Drunk Driving defense strategy relies on the fact that research shows that a high blood alcohol level may not actually be indicative of alcohol consumption, but rather may be caused by a deficiency of zinc in the blood. The DUl / DWl Defense Group will have your zinc levels checked because an insufficient amount of zinc in one’s diet allows alcohol to remain in the blood for a longer period of time resulting in a higher BAC result.
The Internally Produced Alcohol Defense
This DUI / DWl / Drunk Driving defense strategy focuses on reports that some individuals manufacture alcohol internally; as a result, alcohol can be present in an individual’s blood without ever have consumed any at all.
URINE TEST STRATEGIES
The 1/3 Old Urine, 2/3 Fresh Urine Defense
This DUl / DWl / Drunk Driving defense strategy revolves are that fact that urine tests are by far the least accurate of the three available methods of analysis. The primary reason for this is that urine tests are completely dependent on the subject voiding his/her bladder of old urine and then waiting 20 minutes for the bladder to fill up with fresh urine allowing supposedly for a more representative sample. The problem with urine tests exist because it is virtually impossible for an individual to completely void his/her bladder of old urine before the fresh urine arrives. Usually 10 cubic centimeters of old urine combines with approximately 20 centimeters of fresh urine produced during the wait resulting in a sample that is 1/3 old urine, which may contain alcohol from any hours before the defendant was driving.