New DUI ruling gives defendants tool to defeat charges against them

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PHOENIX – A new tool has been given by the state’s high court to individuals charged with DUI to fight against the charges.

On Monday in a unanimous ruling, the Arizona Supreme Court said defendants can give proof to jurors that there are variables among people in which body temperature is included, that make it impossible to accurately convert a breath reading to a specific BAC level of a person. This can make it difficult to determine whether a person is under the influence legally or not.

The Tucson City Attorney’s Office said that those variables are legally irrelevant but Chief Justice Rebecca Berch rejected the arguments. She said the defendants are free to make that argument to the jury to rebut challenges to the accuracy of the readings showed by the breathalyzer. According to defense attorney James Nesci, this provides defendants a chance to say that the breathalyzer readings are inaccurate.

The ruling combined with the previous ruling on the same case by the Court of Appeals is not a total loss for prosecutors, said Deputy City Attorney Baird Greene. “It clearly establishes that we have the right to pursue motions to preclude what we view as clearly speculative evidence and that’s a tool we totally intend to deploy,” he added.

Joseph Cooperman is involved in this case who was pulled over by Tucson police in 2010 for driving while “impaired to the slightest degree”. His breath sample was taken for testing and according to the results, prosecutors added a charge of driving with a BAC level of at least 0.08. Prosecutors sought to block any proof of the breath test might not be accurate, before the trial, but the judge refused.

Nesci said according to the State law, a person with BAC level reading ranging from zero to 0.049 shows that he/she is not intoxicated but there is no presumption for a reading of 0.05 to 0.079, with a jury able to consider “other competent proof” to determine whether a person is under the influence or not. Only an individual with a BAC level of 0.08 percent or above is considered impaired. He also said that defense attorneys always have had the opportunity to claim that the readings of tests are inaccurate and now physiological variables can also be included. He mentioned a proof from a professional defense attorney that the concentration of RBC’s can affect BAC by up to 5%. It can increase or decrease. The same expert attorney also said even a 1 degree variance in the temperature of a person’s breath from the setting on the breathalyzer can show a difference of up to 8% in his BAC level reading.

It was said that environmental factors can also affect the BAC readings.

“My breath might be at .090 but I might actually be at .070,” said Nescion which a jury cannot consider a person was under the influence. “Or I might actually be at .049 and therefore, I’m presumed not under the influence”.

The appellate court ruling was supported by the high court that those variables (environmental factors and breathing patterns) are relevant to the question of accuracy of breath tests in DUI cases.

This is not a chance for Cooperman to stay out of prison said Greene. He said the individuals charged with DUI cannot argue there are variables, and therefore, the readings of the breath test are inaccurate.

He added that the ruling still requires a defense attorney to provide specific proof that his/her client’s physiology differs from the presumptions the machine makes otherwise such testimony is little more than “rank speculation” that would only confuse the jury.

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