A typo in the breathalyzer calibration requirements for police officers may cause thousands of DWI cases to be thrown out in Missouri. According to KRCG13, the error happened in 2012 when the Department of Health adjusted its breathalyzer calibration rule to give officers a third calibration option.
Before the change, police had to calibrate their breathalyzers regularly using a solution that simulated a suspect’s breath with a blood-alcohol level of 0.04 percent or 0.10 percent. The DoH tried to give officers the option to simulate a suspect’s BAL at 0.08 percent. However, according to KCTV5, the author of the new rule wrote “and 0.10” instead of “or 0.10.” The error went unnoticed until April 2014.
Because of this typo, the Missouri Supreme Court ruled that prosecutors in DWI cases brought before the guideline was corrected can only use breathalyzer data from devices that were calibrated for all three blood-alcohol levels. Police departments do not train for this, so at least one prosecutor has asserted that thousands of DWI cases could be thrown out. Many of these cases involve serious DWI-related charges such as vehicular assault and vehicular manslaughter.
In the United States, ex post facto laws are forbidden by the U.S. Constitution. These are laws that make something a crime after it was committed. However, if the defendant’s DWI case has not gone to trial, lawmakers can adjust evidence guidelines so breathalyzer data can come from devices calibrated to one of the three blood-alcohol levels.
During the legislative session last spring, Missouri lawmakers attempted to fix the typo. Although both chambers passed similar language, legislators could not agree to a final version.
Some prosecutors have not brought cases to trial because they were waiting on lawmakers to resolve the typo. However, the criminal attorneys of these offenders can assert their clients’ right to a fair and speedy trial.
Some county law enforcement agencies take blood samples from people suspected of DWI, so even if the breathalyzer data is inadmissible, the blood test results may be enough for the prosecuting authority to secure a conviction.
Possible Defenses against DUI Charges in Florida
This story demonstrates the complexity of drunk-driving laws, and how a thorough understanding of the law can give defendants the opportunity to structure effective defenses. If you are facing DUI charges, your first call should be to a criminal attorney.
There may be several defenses that apply to your case. Here are a few examples:
- Officer did not have reasonable suspicion to make the traffic stop;
- Officer did not have probable cause of a traffic infraction to support the stop;
- Officer did not have reasonable articulable suspicion to justify the detention for the DUI investigation after what may have been a lawful stop;
- Officer did not comply with the statutory or administrative requirements before seeking blood, breath or urine;
- Officer did not conduct the breathalyzer test properly;
- Agency did not calibrate the breathalyzer properly before administering the test;
- Necessary maintenance in prior months or annually was not in substantial compliance with the requirements of law;
- Urine or blood testing/storage failed to comply with the requirements for a credible reading;
- Or the officer was not qualified to administer the test.
There have been recent issues impacting the viability of the state’s prosecution that many criminal defense attorneys were unaware of and had their clients plea as charged when the case could have been easily won or reduced to a lesser charge if the attorney handling the case knew DUI well or stayed current on all issues, not matter how large or small, impacting DUI cases. Do not make the same mistake and hire the wrong lawyer! If you were arrested for DUI in Florida, contact Leader & Leader P.A. Michael D. Leader is a Fort Lauderdale DUI lawyer who will aggressively defend your rights.
As your criminal attorney, Mr. Leader will make himself available 24 hours a day, seven days a week to answer your questions. Call 954-523-2020 to schedule a free initial consultation.
