Section 64 Maintenance Report High Readings and Simulator Solution Error Rates

• Library: DWI Experts and the Science of Chemical Tests 2014

In State ex rel. Director of Revenue, State of Missouri v. Conklin, 997 S.W.2d 121, 124 (Mo. App. S.D. 1999), the appellate court agreed with the MoDOR Director’s claim that, even if the machine was testing 0.002% too high, based on the calibration check’s highest result of 0.0102% and the simulator solution’s alcohol value of 0.003%, which was too high but within its variance, this total possible variance of 0.005% did not lower the driver’s BrAC (breath alcohol content) of 0.108% to below the legal limit of 0.10%.

Conklin did not help the petitioner in that case, but it outlines a challenge to the breath test based on:

· how the machine performed on the calibration check done every 35 days; and

· the error rate of the simulator solution and the error of the machine on the maintenance report, which can be added to show a combined margin of error to help in the close case.

Modifying the facts of Conklin, assume that the test was 0.081%; if the maintenance report (calibration...