Faulty Breath Machines and Missing Evidence

Since every state has breath testing equipment that is used in the great majority of DUI-DWI cases, each state has put into place some type of “shortcut” method by which the prosecution can introduce the breath test into evidence.

This saves costs, since the person who checked the machine’s calibration may not be required to appear at court to prove the underlying scientific theory and reliability of the breath machine used in your case. If such detailed proof is provided, this is called “laying the foundation” for admission of the breath test results.

This cost-saving procedure may be subject to a challenge by your DUI criminal defense specialist on grounds that your Sixth Amendment right of confrontation is violated when a certificate of inspection is permitted to admit the breath test results against you. Your attorney cannot cross-examine a piece of paper!

Recent case law from the United States Supreme Court and several state courts around the country may cause these shortcut methods of establishing a foundation to be deemed insufficient, while other states have declared these methods valid.

The best DUI-DWI attorneys know the procedures that are used by the various police departments in their area. These experienced legal advisors also know the reasons behind the steps in the calibration checking procedures.

Failure to follow the proper procedures during your DUI-DWI arrest, or for handling the scientific or documentary evidence collected from your arrest (blood, urine or breath samples, the police video, any photos taken by the police of the scene or of you, etc.) can result in your attorney successfully arguing pre-trial motions that can either cause your case to be dismissed or key State evidence excluded.

Missing videotapes or the loss of other critical evidence may be fatal to the State’s case. While protections are put in place to protect the police officers during your arrest by allowing them to make video and audio recordings, a breach of the rules for storage and retention of video evidence may be held against the police, due to the defense lawyer’s argument that the destroyed or lost evidence would be favorable to you.

Such destruction of evidence or mishandling of evidence is called “spoliation” of evidence, and operates to the State’s detriment in most situations. The concept, simply stated, is that the State had control and custody of this critical evidence and somehow squandered it or destroyed it, leaving you less able to fully defend your case.

Your memory of the events and sequence of the arrest process can be critical to identifying this type of issue for your defense. Recounting the timeline of what transpired in the hours surrounding your arrest for DUI-DWI can be critical to your attorney if  the videotape disappears.