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  1. #1
    Join Date
    Apr 2017
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    Default Can You Fight BAC Readings Based Upon Discrepancy Within the Margin of Error

    My question involves criminal law for the state of: California

    Can I fight the case since the readings look skewed and do not adhere to any BAC graphs

    BAC readings:
    0.148 -- 11:12pm -- High
    0.13 -- 00:04am -- Low
    0.14 -- 00:06am -- High

    These readings dont make sense when plotted against a BAC curve. I feel the readings are skewed can I fight the case ? My attorney says that there is a 0.01% error margin in the readings, is this how court sees it too?

  2. #2
    Join Date
    Sep 2010
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    19,901

    Default Re: Can I Fight the Case Since the Readings Look Skewed and Do Not Adhere to Any Bac

    You have a lawyer, why don't you listen to them. I don't know what sort of curve you are plotting, or why you think any sort of curve makes any legal difference. You have numbers that are close enough with the accuracy of unit to pretty much be the same. In fact, even if they were 100% accurate down to .000000000001%, the numbers aren't out of line. People's bac's do indeed fluctuate like that.

  3. #3
    Join Date
    Nov 2015
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    47.606 N 122.332 W in body, still at 90 S in my mind.
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    Default Re: Can I Fight the Case Since the Readings Look Skewed and Do Not Adhere to Any Bac

    Your readings =trashed.

  4. #4
    Join Date
    Oct 2014
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    8,238

    Default Re: Can I Fight the Case Since the Readings Look Skewed and Do Not Adhere to Any Bac

    What BAC curve are you comparing this against and why do you think it calls into question the BAC results? What you have are three tests done within about a 45 min period that show fairly consistent readings. That rather supports the test results. That's one of the reasons they do several tests so as to spot any potential problems in testing. In particular, all are well above the .08 BAC level that triggers the presumed intoxication part of the DUI law, which means that the state does not need to show evidence of actual impairment to win a DUI case. With breath tests there will be some variation on each blow because the subject does not blow exactly the same each time, so the variation here is not surprising. Because of that, if what you are trying to do is match this with a curve of how BAC drops over time and argue that because it doesn’t exactly match the decline expected the tests done on you must be bad I think you will find that is a losing argument.

  5. #5
    Join Date
    Sep 2005
    Location
    California
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    20,594

    Default Re: Can I Fight the Case Since the Readings Look Skewed and Do Not Adhere to Any Bac

    Quote Quoting Lisarai
    View Post
    My question involves criminal law for the state of: California

    Can I fight the case since the readings look skewed and do not adhere to any BAC graphs

    BAC readings:
    0.148 -- 11:12pm -- High
    0.13 -- 00:04am -- Low
    0.14 -- 00:06am -- High

    These readings dont make sense when plotted against a BAC curve. I feel the readings are skewed can I fight the case ? My attorney says that there is a 0.01% error margin in the readings, is this how court sees it too?
    The legal tolerance tends to be +/- 0.02. I presume that the 11:12 PM reading was the field PBT test, and the next two at 00:04 and 00:06 were the mandated chemical test after the arrest. If so, then the two readings appear to be perfectly within time and tolerance.

    Most DUIs result in plea deals. If a DUI is to be beaten, it is rarely as a result of a challenge to the device, and most often as a result of a challenge to the detention (reason for the stop) or the probable cause for the arrest. An experienced attorney (or an attorney that specializes in DUI cases) can review the case and tell you if you have a snowball's chance in heck of prevailing.

  6. #6
    Join Date
    Sep 2005
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    98,846

    Default Re: Can You Fight BAC Readings Based Upon Discrepancy Within the Margin of Error

    Quote Quoting Lisarai
    View Post
    Can I fight the case since the readings look skewed and do not adhere to any BAC graphs
    Even leaving margin of error issues aside, if your theory is that your BAC shoud have dropped by more than .018 between the time of your PBT and the time of your formal test, keep in mind that your BAC can continue to rise after the PBT based upon the recency of your alcohol consumption.

  7. #7
    Join Date
    Jul 2015
    Location
    Florida
    Posts
    301

    Default Re: Can You Fight BAC Readings Based Upon Discrepancy Within the Margin of Error

    There is also the issue of mouth alcohol, which is why admissible breath test results have to be taken after a waiting period. The only significant results are the two that were taken two minutes apart, both within tolerance. It's a losing argument. The first one could support probable cause for arrest, however.

  8. #8
    Join Date
    Sep 2005
    Location
    California
    Posts
    20,594

    Default Re: Can You Fight BAC Readings Based Upon Discrepancy Within the Margin of Error

    The first test - the field PBT/PAS test - is but one of the FSTs, so by itself it would not be significant as probable cause to support the arrest in CA. I suspect there were other observations that led to the arrest as well.

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