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Our DUI attorneys at CHM Law are often asked, what do you do if the blood results are over a .08, the legal limit in Arizona? Fortunately, it is possible to manipulate a blood alcohol concentration (BAC) if your attorney is well-versed in the science. Unfortunately, too many attorneys just plead their clients guilty because they do not understand how to move the blood alcohol concentration lower.
Inherent in a blood test is a 5% margin of error according to the prosecutor’s own expert witness. However, our expert will testify that there is a 10% margin of error in the instrument. This means the BAC can be 10% higher, lower, or anywhere in between the reported value. The prosecutor has the burden of proving the case beyond a reasonable doubt. Thus, the defendant gets the benefit of the doubt that the reading is 10% lower.
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How Can Blood Tests for BAC Readings be False?
One of the main factors that can lead to an inaccurate BAC reading after being pulled over for suspicion of DUI is that blood will clot. If the forensic scientist, who is testing the blood, sees the clot, he or she will grind the clot down so it does not artificially raise the reading. However, the scientist will often never see the clot.
It is important to keep in mind that the prosecution’s crime lab does a whole blood analysis, which is clotty by nature. Whereas, a hospital analysis for BAC is a plasma analysis. Plasma is smooth and not clotty. Whole blood is tantamount to orange juice with the pulp in it.
Any clotting within the blood sample can raise the reading dramatically.
Plasma is like orange juice without the pulp in it. Therefore, whole blood is much more likely to clot than plasma. The police blood storage tubes contain anticoagulants. However, anticoagulant does not preclude clotting it only mitigates clotting. Moreover, clotting occurs despite the anticoagulant.
Fermentation can also artificially raise a person’s BAC by creating alcohol in the person’s blood sample after it is removed from the body.
Fermentation occurs, in the sample, when there is food, sugar, for candida albicans to consume and the by-product is alcohol. The reading is higher because alcohol is created in the sample. However, that alcohol was not present in the person’s blood when he or she was driving. The alcohol was created after the blood was removed from the body in the tube where it was stored. The fermentation argument pairs well when there is Acetaldehyde in the blood.
Acetaldehyde is a chemical that is almost always present in the blood when a person has been drinking and shows up in the prosecutor’s blood results. Acetaldehyde is a by-product of the body breaking down alcohol. However, acetaldehyde is also a byproduct of fermentation.
Mistakes in drawing the blood can artificially raise the reading.
If a smaller gauge needle is used to draw the blood, it can shred the blood vessels and cause hemolysis. Hemolysis can artificially raise the BAC. If the blood is drawn from an artery instead of a vein this will artificially raise BAC. The phlebotomist will often use hand sanitizer on their hands to sanitize their hands prior to the blood draw. The main ingredient in most hand sanitizers is ethanol alcohol. The same kind of alcohol the crime lab is testing for to determine BAC. The phlebotomist will then grab the outside of the gloves with hands that have alcohol on them. This puts alcohol on the outside of the gloves. The phlebotomist then feels for the vein and then palpitates the vein. The phlebotomist then puts the syringe into the arm, picking up the alcohol on the outside of the arm.
When the syringe is removed from the arm, it will have suction on it, and any evaporated alcohol from the hand sanitizer could be sucked into the syringe. It is important to note that it would only take a microscopic amount of alcohol introduced into the syringe to have a profound effect on the BAC.
The above issues are assuming the instrument that measures the BAC is working correctly. If the instrument is not working correctly, that is a separate strong defense in and of itself. It is a mistake to assume the instrument is working correctly. The prosecution must prove that it is working correctly. If the instrument is working correctly, the above issues are ammunition to shoot at their case.
What about False Breathalyzer BAC Test Readings?
There is still a defense even if the breath test states that you are over the legal limit. There are variables inherent in the breath test, also known as the breathalyzer or intoxilyzer, even when it is in perfect working order that can artificially raise the reading.
The intoxilyzer has a 10% margin of error even when it is working perfectly. The instrument can read 10% higher or lower or anywhere in between than the subject’s true alcohol concentration.
In addition to the 10% margin of error, an elevation in body temperature will cause the subject’s breath sample to be artificially higher. When a person wakes up from a full night’s sleep, they are almost a degree less than 98.6 degrees. However, at night time or early in the morning, before a person goes to sleep, their body temperature will be almost a degree higher than 98.6 degrees. This is the time that most people get charged with a DUI. This slight elevation on body temperature of almost 1 degree can cause the reading to be artificially raised by 8.6%.
Here is a logical example: If you put a cold cup of coffee in front of a person, they will smell it slightly. However, if you put a hot, steaming cup of coffee in front of someone, it will have a stronger odor. As many people learned in school, heat expands. This is why the hot cup of coffee gives off a stronger smell. If the subject has a higher body temperature because they are sick and/or have a fever, the reading will be raised substantially higher.
A delay between inhalation and exhalation, which is required to blow properly into the breath test, will artificially raise the reading up to 15%. The reason for the delay in inhalation and exhalation is because the tube is not in the subject’s mouth when they take a deep breath. If it were, the subject could inhale the tube and choke on it.
The instrument assumes that your blood-to-breath conversion is 2100 to 1. However, 1 in 7 people are less than 2100 to 1, and this would artificially raise the reading. Ironically, 7 people are the same amount of people that sit on a jury in a misdemeanor DUI in Arizona. When at trial, we always remind the jury that one of them would blow artificially higher on an intoxilyzer. The amount the reading is raised depends on how much below the subject is to 2100 to 1 air to breath conversion ratio. If a subject is 1900 to 1, the breath test results would be 10% higher.
It is important to keep in mind that all of these variables are still in effect even if the instrument is in perfect working order.
The variables are in addition to each other. Therefore, if the breath test states that the subject’s breath test is a .125, their real body alcohol concentration can be as low as .07, which is below the legal limit.
Moreover, if the subject has a fever, the reading will be substantially higher. In addition to the variables, there is always the possibility that the instrument is not working properly due to the instrument being out of tolerance, having stability or voltage problems, and radio frequency interferences. If the instrument is not working correctly, a pretrial motion should be filed to suppress the breath test results, so the jury never hears the results.
If the instrument is working properly, then the reading needs to be manipulated using the variables to show how the instrument can read artificially higher. This provides the jury with reasonable doubt. The jury is instructed by the judge that if they have reasonable doubt, they must find not guilty.
When You Need Help from an Elite Arizona DUI Lawyer, Call CHM Law
If you need to move your blood and/or breath alcohol concentration below the legal limit, please call us at Colburn Hintze Maletta, PLLC (602) 825-2500. We have successfully completed over 100 DUI jury trials and represented thousands of clients facing DUI charges.
Our DUI defense tactics have proven to be so effective that we have taught continuing legal education to attorneys on how to manipulate breath and blood readings. That is how confident we are about winning your DUI case!
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One piece of advice for people who are charged with anything in Arizona is to hire a great lawyer because the state does not care if you’re innocent or not. The Arizona legal system will try to ruin your life. A couple of years ago I was the victim of an antisemitic hate crime when a guy named Billy, who had a history of drug and alcohol issues and was thrown out of the Navy for being violent, decided to attack me after drinking all day in Old Town (Sunday funday) over a pointless argument over whether it’s better to buy homes immediately post-recession or during the 10th year of a bull market run which was his argument. The disagreement led to Billy making several anti-semitic comments and assaulting me, which led to me beating up billy. Billy and his friends then went to the police and lied to try to get me thrown in jail for months for assault while getting 10s of thousands of dollars in restitution in the process. I hired David Maletta. We went to court and destroyed Billy and his best friend/roommate Taylor who were trying to extort me and ruin my life. In Arizona there is a 3.5% chance you’ll get all charges dropped because of how hard the state is on crime but we pulled it off and I still have a clean record to this day.
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I had an incident and was given the catch-all charge. There wasn’t really anything I could do by myself to get out of it. Tim was absolutely amazing and worked diligently to ensure that I would have the best possible outcome from my case. Which he successfully achieved! As of right now, I am on the path to having my case fully dismissed. A couple of things that really helped me through this process was that Tim did an amazing job at answering my questions. He was available almost anytime and would respond promptly when he got my emails. He was also very approachable and comforting to be around while we had in person meetings and especially when I was at the court house. I would trust him and the company he works for with any other cases in the future, and as of right now, they will be my first choice if I need a lawyer in the future.
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David Maletta is the absolute best trial attorney in the state of Arizona. He is a kind, emphatic, and extremely patient person. As an attorney, he is prepared, aggressive, and extremely skilled. He is not afraid to go to trial and fight for his clients, like other attorneys that just plead their clients to the original charges. When he is in trial, he flips a switch and goes from a nice guy to a killing machine. He fights for his clients like no one I have ever seen. Watching him do a cross-examination is exhilarating because he is so good it’s scary.
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I honestly just want to let it be known to any and everyone looking for an attorney on a case. Whether it be DUI, possession, or your every day to day traffic violations where you need representation attorney Tim Hintze is your man. You have to respect a man that listens to every request that you make on a case and he gets in there and gets it done. Tim has my respect as an attorney and being a well-rounded representer. From him being honest on the possibility and options for your case to him being easy to work and communicate with via over the phone or face to face Mr. Hintze is working it out.
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I have nothing but good things to say about my experience working with David Maletta. I was in a very high-stress situation facing a pending DUI charge. He doesn’t know this, but I actually interviewed 5 potential lawyers, and he was the most optimistic of all of them. He took over and handled everything, and now I don’t have to live with a DUI. Thank you so much for everything! Highly recommend them to anyone looking for legal help.
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We retained David Maletta to represent our son after being cited for what can only be described as a momentary lapse of reason. David was extremely knowledgeable, was able to clearly communicate very complicated concepts, and was relentless in his pursuit of my son’s innocence. He had strong relationships with the prosecuting attorney and respect of the judge, which ultimately resulted in my son learning a really hard lesson with limited consequences (traffic school and writing an essay to the judge on the physics of driving 130MPH and what happens if that goes badly). I have already sent all of my friends with teenage and 20 year old kids his contact information for when they inevitably get that call. David completely exceeded all of our expectations and we could not recommend him any stronger. Thank you for everything.