DWI Convictions May Be Overturned By Examining BAC Test Code

Posted by Ryan Russman | Oct 29, 2013 | 0 Comments

The criminal justice system is designed to protect the rights of all those accused of crimes—no matter what the charges. One of those crucial rights is the ability to examine the evidence against you and offer a defense to challenge that evidence. In drunk driving cases this usually means that a defendant and their attorney will closely examine field sobriety test results, blood tests, and breathalyzer details. That is because these test results constitute the core evidence against fighting a DWI in NH.

If the accuracy of those tests is unclear then the court is usually required to return a not guilty verdict, because reasonable doubts are raised.

Yet, while the justice system has rules to protect defendant rights, those charged with crimes sometimes have to stand up and fight just to have those rights respected. This is where an experienced criminal defense attorney makes all the difference.

Obtaining Evidence of Faulty Breathalyzer

Take, for example, the simple right to view the evidence against you. Enforcing this right is not always straightforward when it comes to BAC tests. This is illustrated in a case that reached a state Supreme Court a few years ago.

In 2009 the Minnesota Supreme Court was asked to hear appeals (State v. Underdahl & State v. Brunner) by two defendants seeking to have their DWI convictions overturned because they were not given access to the source code of a device known as the Intoxilyzer 5000EN. The Intoxilyzer is a BAC testing tool that measures the blood alcohol level based on readings from one's breath. However, like all machines, there is a risk of faulty breathalyzer readings. If the machine is error-prone or outdated then the reading may be incorrect and the subsequent DWI conviction would need to be overturned.

To properly defend themselves and determine if the breathalyzer was in fact faulty, the defendants needed access to the device and information about how it works. A crucial piece of evidence is the “source code” for the device—computerized processing data that determines how the machine computes breath readings. If there are errors in that code, then the reading may be inaccurate.

Obtaining access to that source code was at the heart of the state Supreme Court challenge. The two defendants claimed that their DWI convictions should be overturned because they asked for access to the source code for the Intoxilyzer and were denied. The state disagreed.

The justices decided that the issue was clear: the state had to produce the source code. The justices were persuaded by exhibits and expert opinions from a New Jersey case which showed various defects in the source code for a breath test. Those defects affected the reading. Those errors have obvious implications on the sufficiency and credibility of the evidence against a criminal defendant facing a possible DWI conviction.

Fight DWI Convictions in NH

If you are facing DUI charges in New Hampshire, it is essential to have the best and most experienced legal help to fight the charges. Identifying a faulty breathalyzer, for example, may be a crucial way in which you avoid conviction. But, as this case demonstrates, it sometimes takes fierce advocacy just to be given access to the full scope of evidence against you.

If a breathalyzer is used to determine your BAC, it is important to understand the exact device used. There are different breath machines, each with their own vulnerabilities—some are flawed or outdated. You may be able to fight charges or have a DWI conviction overturned by challenging these tests.

Attorney Ryan Russman has certifications in both Multi-Device Breath Testing Mega-Course and Evidentiary Breath Alcohol Technician / Intoxilyzer Instrument giving him the experience you need to fight the BAC results.

About the Author

Ryan Russman

Attorney Ryan Russman has dedicated his career to fighting for the rights of New Hampshire citizens. His practice, based in Exeter (Rockingham County) New Hampshire, is limited to cases involving DWI and DUI, other motor vehicle and criminal cases, and many cases involving personal injury. He is, however, best known as one of New Hampshire's leading legal authorities on DWI.


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