Thursday, July 9, 2009

Breath Testing Flaws of Blood to Breath Ratio

The California Supreme Court just ruled in an appealed case, People v. McNeal, that a defendant in a criminal DUI trial charged with violations of California Vehicle Code Section 23152(a) has the right to provide evidence that the breath test may be flawed scientifically to the result for impairment because a persons blood to breath ratio, which is presumed as an average to be 2100/1, which may be flawed as if varies from person to person and time to time. The 2100/1 is just an average, and an average person can be as low as 1250/1 or as high as 2950/1 which dramatically effects the test result. For Example; a person may read .13 on the breath test which the machine is set to presume that the person taking the test is 2100/1, but lets assume he or she is not. Then the actual blood alcohol level could be higher depending on the blood to breath ratio or lower which could make the person taking the test a true alcohol level of .05 which is not illegal.
The law regarding the Per Se charge of 23152(b) prohibits this information from coming before the jury based on the erroneous decision, without any scientific foundation, that everyone is 2100/1. However, this does not apply to the first Count as stated above. Obviously, if one is not of the ration of blood to breath in one Count in the same breath test, that person cannot be any different in the Second Count which the jury will now once again after many years of denial be able to hear evidence of during a DUI trial.
Additionally, the Preliminary Alcohol Screening Test (PAS) has the same issues of 2100/1, and as it is a field sobriety test, the right to challenge its capacity set at 2100/1 is now also available to the defend against these erroneous readings. Rights that have been denied to American Citizens for many years are now being restored. Constitutional rights to present evidence in favor of the defendant under the 6th Amendment.
While the breath testing machines do a good job as evidential tools, they lack many capacities. The right to show a defendant's innocence has been restored by the People v. McNeal decision of the California Supreme Court, and a great day for justice has appeared in California.