News & Wins

CDL and Driver’s License Saved after .106 breath test.

By Denise L. Childress

Before blowing a .106, 42 year old truck driver stopped in non-commercial vehicle for tires crossing the centerline one time. Officer reportedly detected strong smell of intoxicants, bloodshot, watery eyes, and slurred speech. Client reportedly stumbled on way to patrol car, failed all field sobriety testing: counting test, horizontal gaze nystagmus test, portable breath test, walk and turn test, and one leg stand test. 

RESULT: Admin alcohol suspension and CDL disqualification set aside. CDL reinstated and, therefore, job saved.

How did we do it? In Missouri, the police are required to check the accuracy of breath testing instruments used to test a driver-citizen’s breath for breath alcohol content to make sure the machine is working correctly. In order to do this, a bottle of simulator solution containing a mixture of water and ethyl alcohol is poured into the simulator, which is a glass jar with a stirring device and thermometer inside. The simulator and solution must then be heated up to 34 degrees Celsius. Once heated to the correct temperature, a vapor forms above the liquid solution inside the simulator and that vapor is then forced into the breath testing device. When heated to the correct temperature, the breath test instrument should read .10, .08, and/or .04, depending on which solution or solutions are used. This is a critical part of the process to verify that the breath testing device is reading accurately.

Upon close examination of the discovery, Mr. Ward analyzed the maintenance records, where he noticed that the temperature of the simulator and simulator solution used to test the accuracy of the BAC machine had not been checked during the previous monthly maintenance check. As a result, his objection to the admission of the breath test was sustained, and the breath test was not admitted.

NOTE: The choice of a lawyer is an important decision and should not be based solely on advertisements. Past results afford no guarantee of future results. Every case must be judged on its own merits.

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