Educating D.C. Criminal Defense Lawyers on DUI/DWI/OWI
by Jamison Koehler on November 23, 2009
This past weekend I attended a full-day seminar entitled “DUI, DWI, and OWI Cases After Melendez-Diaz.” Hosted by the Public Defender Service for the District of Columbia, the seminar was attended by almost 100 criminal defense lawyers in D.C. Two prominent DUI/DWI/OWI lawyers, Thomas Key and Bryan Brown, led the presentations. Also speaking at the seminar were a number of notable jurists, including Chief Judge Satterfield of the D.C. Superior Court, D.C. Superior Court Judge Milton Lee, and D.C. Magistrate Judge Marisa Demeo.
Because I was both inspired by and learned a lot from the conference, I have decided to do a series of posts over the coming months on DUI, DWI and OWI issues in D.C. Since I have already covered the basic elements of each of these offenses, I will deal with many nuts-and-bolts issues connected with these offenses, including the validity of breath tests, the accuracy of standardized field sobriety tests (SFSTs), and problems with the Intoxilyzer 5000, the machine used for measuring blood alcohol content in D.C.
As a short preview of what is to come, I offer the following:
— Unlike many other jurisdictions, D.C. police rely almost entirely on breath tests as a surrogate measure of blood alcohol content when testing a suspect for intoxication.
— The breathalyzer used in D.C. assumes that the person being tested has the average body temperature of 98.6 degrees Fahrenheit. However, a person’s body temperature can fluctuate by several degrees over the course of a normal day. A person’s body temperature can also be affected by other factors, such as fever from an illness.
— A rise in a person’s body temperature can significantly skew the results of the breathalyzer to show a higher blood alcohol content than is accurate. For example, a rise in temperature of only 2 degrees Fahrenheit can show an 10% increase in apparent blood alcohol content.
— According to Peter Gerstenzang of Gerstenzang, O’Hern, Hickey & Gerstenzang, “mouth alcohol” is the most common cause of error in breath testing.
— Burping or regurgitating within 20 minutes of the breath test can lead to a misleadingly high result. While the person administering the test is supposed to keep the suspect under continuous observation for that 20-minute period, it is unrealistic to assume the tester will not use this time to fill out paperwork or perform routine administrative chores.
— The test result can also be influenced by a person’s breathing patterns just prior to the sample. Three deep breaths before the sample breath can reduce test results by 4%. Holding one’s breath for 15 seconds before exhalation can increase the result by 12% (for a minimum exhalation) and 6% (for a maximum exhalation).
— Because the limited breath sample size needs to be multiplied many times in order to approximate alcohol content in the blood, any potential errors in the sampling will be magnified many times in the result.