Insufficient or broken observation period
-no continuous observation for entire 15 minutes before first breath
sample (e.g. Officer attempts to include transportation time as part
of required observation period, goes to his trunk and/or walks around
before removing you from police car, or you were left alone at anytime
prior to taking the test -e.g. used restroom or telephone or placed
in holding cell/room).
During those 15 minutes before the test,
you burp, belch or have slight regurgitation of gas that is relatively
Vomiting, belching within 15 minutes of
test - no rinsing of mouth, or inadequate deprivation period before
You may not be a proper subject for breath
testing. You have a physical problem or health limitation:
gastric reflux, hiatal hernia or intestinal
problem (e.g. Gastro Esophageal Reflux Disease, Irritated Bowel
Syndrome, or Acid Reflux Syndrome) diagnosed and treated before
date of arrest;
dental condition (e.g. gum disease/gingivitis/pockets
around roots, dentures or bridgework which may trap mouth alcohol
and contaminate a breath machine sample); or
respiratory problem (e.g. asthma, bronchitis,
emphysema or chronic obstructive pulmonary disease).
Your behavior or actions do not match test
results (e.g. shown by independent witnesses).
The breath test room or circuitry has a
problem (e.g. Radio Frequency Interference from a cell phone, officer's
radio, copy machine or other equipment with surge capabilities) which
may cause machine to give artificially high reading; smoking in or near
machine; shared power supply with heater or other appliance - must be
dedicated "clean" electrical source; or recently painted walls or trim).
You have had recent environmental exposure
to volatile fumes (lacquer, gasoline, paint, dry cleaning fluids or
even 409) which have cumulative reading, causing chemical interference/falsely
Air bag defenses - "the Tyndall effect'
- diffusion of light; propellant exposure; cut lips; lung and airway
irritation & fluid build-up from caustic gas propellant.
Video tape refutes the high reading, supports
High test result, yet you never urinate
for 3 to 4 hours or more - physiological impossibility.
Unintentional alcohol (e.g. from Nyquil,
Vicks Formula 44, lip balms, toothache drops).
Something in mouth containing alcohol (e.g.
Breath Drops with SD alcohol).
Something in mouth that contains interfering
or contaminating substance (e.g. Skoal snuff - wintergreen; Altoids
curiously strong mints).
Improper or out of agreement tests, without
follow-up tests to correct [both results must be within 0.02% of each
Officer refuses to permit your request
for a second, independent test. Denial of blood test - the more
reliable target with the more accurate method of analysis.
Officer not trained or marginally trained
in accordance with the standards of Title 17 of the California Code
of Regulations (e.g. not trained in theory of operation of machine).
Officer fails to follow manual or training
Inadequate inspections by machine inspectors
(e.g. no linearity proven).
Police report supports sobriety, or lack
of investigation of alternative causes.
Rising blood alcohol level showing time
of driving BAC would have been lower than time of testing.
Elevated breath temperature (e.g. caused
by fever, hot tub, sauna, detention in hot sun or back of patrol car
in summer, dancing, menstrual cycle, etc.)
Breath/blood ratio (2100:1) not proven
to be your ratio; show how minor error gets multiplied 2100 times; 0.12
= 17/10,000,000th of an ounce. Show you have abnormally low blood/breath
conversion ratio through testing and expert.
Inherent sampling variability or margin
of error (e.g., 0.088 reading - state acknowledges +/- 0.01% precision
You have blowing pattern irregularity (e.g.
blubbering and crying causing artificially high water vapor problem).
You have been on strict high protein diet
and then introduce carbohydrates, thereby triggering auto-generated
alcohol production when ketones are converted to isopropyl alcohol (or
the "auto-brewery" syndrome).
You have diabetes, are borderline diabetic
or are hypoglycemic and consume alcohol in any amount, causing conversion
of high acetone levels into isopropyl alcohol.
Breath test operator gets first BAC results,
which will not support a .08% per se case, then waits a few more minutes
and retests, obtaining a reading above the per se limit.
Officer gives chemical test admonition,
but then goes too far by threatening dire warnings for which there is
no factual basis or misstates consequences regarding possible license
State fails to prove that results were
obtained within the 3 hour statutorily imposed time (3 hours after driving
ended) in order to invoke rebuttable presumption that your BAC was at
or over the limit at time of driving.
You can prove sufficient alcohol was consumed
during driving, after driving ended or before police arrived.
Officer gets fired, indicted, retires,
moves away, or dies.
In handling case, officer commits crime (e.g.,
obstruction of justice or perjury) in an effort to conceal evidence;
state cannot proceed, or more often makes an illegal, warrantless stop
or arrests you without probable cause.
to do What you must do within 10 days of being
arrested in San Diego County.
Free Evaluation Completing this Evaluation Form will
important information to DUI/DMV Attorney Rick Mueller.