Attacking and defending breath tests
| Author | Don Bartell/Mary Catherine McMurray/Anne ImObersteg |
| Pages | 337-366 |
12-1
CHAPTER 12
ATTACKING AND
DEFENDING BREATH TESTS
I. GENERAL POINTS
§12:01 Police Prefer Breath Tests
§12:02 Drivers Prefer Breath Tests
II. ATTACKING BREATH TESTS
A. General Points
§12:10 Three Categories of Attacks
§12:11 First Line Defenses
§12:12 Second Line Defenses
§12:13 Third Line Defenses
§12:14 The Common Theme
§12:15 Checklist for Attacking Breath Tests
B. First Line Defenses
1. Calibration of the Machine
§12:20 Review Calibration Records
§12:21 Frequency of Certification Varies
§12:22 Distinguish Between Calibrations and Calibration Checks
§12:23 Sample Calibration Check Record
§12:24 Suppressing Tests for Lack of Calibration Check
§12:25 Challenging Perfect Records
§12:26 Cross-Examining on Calibration Checks
§12:27 Calibration by Dry Gas Alcohol
§12:28 Calibration of the Dräeger Alcotest® 7410
2. Administration of the Test
§12:30 Review Test Administration Procedure
§12:31 Operator Must Be Qualified
§12:32 Operator Qualified on a Different Machine
§12:33 Effect of Unqualified Operator
§12:34 Testing Procedures
§12:35 Required Observation Period
§12:36 May Have More Than One Observer
ATTACKING & DEFENDING
BREATH TESTS
Attacking and Defending Drunk Driving Tests 12-2
ATTACKING & DEFENDING
BREATH TESTS
§12:37 The Continuity Requirement for the Observation
§12:38 Failure to Comply With Observation Period
§12:39 Blueprint for a Lack of Continuous Observation Attack
3. Test Assumptions and Averages
§12:40 The 2100 to 1 Partition Ratio
§12:41 Traditional Attack on the Partition Ratio
§12:42 Establishment of Breath Alcohol Level as a New Offense
§12:43 Use the Partition Ratio to Attack the Under the Influence Charge
§12:44 Reply to Prosecution Attempts to Eliminate Partition Ratio Evidence
§12:45 Use the Ratio Attack When Prosecution Expert Contradicts Defendant
§12:46 Cross-Examining on Partition Ratio
C. Second Line Defenses
§12:50 Margin of Error
§12:51 Not Specific for Alcohol
§12:52 Falsely High Readings During the Absorptive State
D. Third Line Defenses
§12:60 General Points
§12:61 Radio Frequency Interference
§12:62 Dentures and Dental Work
§12:63 Human Factors
§12:64 A GERD Defense
III. DEFENDING BREATH TESTS
§12:70 Do Not Discuss Partition Ratios
§12:71 Know the Testing Regulations
§12:72 Establish That the Machine Was Working
§12:73 Use Impressive Names for the Machine
§12:74 Establish the Operator’s Credentials
§12:75 When the Test Has Problems
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