breath analyzer evidence

The breath alcohol reading is used in criminal prosecutions in two ways. Unless the suspect refuses to submit to chemical testing, he will be charged with a violation of the illegal per se law: that is, it is a misdemeanor throughout the United States to drive a vehicle with a BAC of .08% or higher (.02% in most states for drivers under 21). One exception is the State of Wisconsin, where a first time drunk driving offense is normally a civil ordinance violation. The breathalyzer reading will be offered as evidence of that crime, although the issue is what the BAC was at the time of driving rather than at the time of the test. The suspect will also be charged with driving under the influence of alcohol (sometimes referred to as driving or operating while intoxicated). While BAC tests are not necessary to prove a defendant was under the influence, laws in most states require the jury to presume that he was under the influence if his BAC was over .08% when driving. This is a rebuttable presumption, however: the jury can disregard the test if they find it unreliable or if other evidence establishes a reasonable doubt. If a defendant refused to take a <a href="http://www.policegearonline.com/index.php?theProductID=1641">breath analyzer</a> test, most states allow evidence of that fact to be introduced; in many states, the jury is instructed that they can draw a permissible inference of "consciousness of guilt." Many states also operate under "implied consent," meaning that anyone issued a driver's license in the state agrees to submit to a test of his or her breath, blood, or urine when requested by a law enforcement officer. Failure to submit to such a test may result in automatic suspension of his or her driver's license even if not convicted of drunk driving. Failure to submit to such a test may also serve to enhance the penalties for a drunk driving conviction. In drunk driving cases in Massachusetts and Delaware, if the defendant refuses the breathalyzer there can be no mention of the test during the trial. Instruments such as the Intoxilyzer 5000 are known as Evidentiary Breath Tests (EBT's) and generally produce court-admissible results. Other instruments, such as the SD-2 by CMI or the Alcosensor III by Intoximeters, are known as Preliminary Breath Tests (PBT's), and their results, while valuable to an officer attempting to establish probable cause for a drunk driving arrest, are generally not admissible in court. Some states do not permit data or "readings" from hand-held PBTs to be presented as evidence in court. They are generally admissible, if at all, only to show the presence of alcohol or as a pass-fail field sobriety test to help determine probable cause to arrest. South Dakota does not permit data from any type or size of breath tester but relies entirely on blood tests to ensure accuracy.

The breath alcohol reading is used in criminal prosecutions in two ways. Unless the suspect refuses to submit to chemical testing, he will be charged with a violation of the illegal per se law: that is, it is a misdemeanor throughout the United States to drive a vehicle with a BAC of .08% or higher (.02% in most states for drivers under 21). One exception is the State of Wisconsin, where a first time drunk driving offense is normally a civil ordinance violation. The breathalyzer reading will be offered as evidence of that crime, although the issue is what the BAC was at the time of driving rather than at the time of the test. The suspect will also be charged with driving under the influence of alcohol (sometimes referred to as driving or operating while intoxicated). While BAC tests are not necessary to prove a defendant was under the influence, laws in most states require the jury to presume that he was under the influence if his BAC was over .08% when driving. This is a rebuttable presumption, however: the jury can disregard the test if they find it unreliable or if other evidence establishes a reasonable doubt.

If a defendant refused to take a breath analyzer test, most states allow evidence of that fact to be introduced; in many states, the jury is instructed that they can draw a permissible inference of "consciousness of guilt." Many states also operate under "implied consent," meaning that anyone issued a driver's license in the state agrees to submit to a test of his or her breath, blood, or urine when requested by a law enforcement officer. Failure to submit to such a test may result in automatic suspension of his or her driver's license even if not convicted of drunk driving. Failure to submit to such a test may also serve to enhance the penalties for a drunk driving conviction. In drunk driving cases in Massachusetts and Delaware, if the defendant refuses the breathalyzer there can be no mention of the test during the trial.

Instruments such as the Intoxilyzer 5000 are known as Evidentiary Breath Tests (EBT's) and generally produce court-admissible results. Other instruments, such as the SD-2 by CMI or the Alcosensor III by Intoximeters, are known as Preliminary Breath Tests (PBT's), and their results, while valuable to an officer attempting to establish probable cause for a drunk driving arrest, are generally not admissible in court. Some states do not permit data or "readings" from hand-held PBTs to be presented as evidence in court. They are generally admissible, if at all, only to show the presence of alcohol or as a pass-fail field sobriety test to help determine probable cause to arrest. South Dakota does not permit data from any type or size of breath tester but relies entirely on blood tests to ensure accuracy.

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