CanI fight a DUI if my blood alcoholregistered higher on the police test than what it listed at the hospital?

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CanI fight a DUI if my blood alcoholregistered higher on the police test than what it listed at the hospital?

I admit and accept responsibility for having a few beers at a small party at work, then drove home. I know my limits, so I had about 4 and headed home. I had a bad accident on the way home involving an unsafe motorcyclist that caused me to have to swerve off the road into the embankment, when I swerved back onto the road I flew across the road and went airborne onto the highway about 75 feet below, where I was T-boned. The hospital said my blood alcohol was “.08” and that “I don’t have anything to worry about”. The cop took a month to cite me, saying his test reported .83. Can I fight this? Should i speak with a DUI lawyer? In Altoona, PA.

Asked on January 27, 2011 under Criminal Law, Pennsylvania

Answers:

Jonathan Stanwood / Law Office of Jonathan H. Stanwood, LLC

Answered 10 years ago | Contributor

First of all, .08 = guilty as does .083 (which is what I think you mean) depending on when the blood was drawn.  Further, the regulations regarding breath test discuss this but if both were blood, you have less areas to argue than with breath testing devices which are required to be calibrated and certified.  An expert can give an opinion about BAC as to the time of operation but the DUI statute in Pennsylvania creates a window in which you can be found guilty, not just proof of intoxication at the time of driving.

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Absolutely.  It can, and does, happen all of the time.  There are many cases of lawyers successfully challenging the accuracy of a DUI breathalyzer.  There are some instances of judges even dismissing DUI charges based on the type of breathalyzer device used during the arrest due to suspicious replacement parts from random companies.  And some states have challenged the accuracies of certain DUI breathalyzers due to manufacturers denying access to certain secret software on the grounds of trade secrets.  

Also, according to some researchers, breathalyzer results can vary by as much as 15% from a person's actual blood alcohol content (BAC).  It's estimated that 1 in 4 people tested will register a higher BAC than their actual BAC. Discrepancies can result from the need for breath test devices to be constantly re-calibrated. If this recalibration process is not properly conducted, it makes the devices susceptible to inaccurate readings.  This might be especially in your case considering the discrepancy between the reading on the device used by the police and your BAC at the hospital.

Additionally, there are several other grounds on which a DUI charge can be fought.  Very often if there are weaknesses in the case, there won't even be a trial.  A skilled attorney can convince the prosecutor to drop the case or allow you to plead guilty to a far lesser charge, such as reckless driving or even speeding.  At the very least, they can help minimize your penalties, which can save you money, eliminate jail time, and shorten the length of your suspension. 

What all of this means is that if you're charged with DUI, you should hire an experienced lawyer to represent your case.  When retaining a lawyer, choose one that practices in the court in question.  They will have local contacts within the system that could prove invaluable when negotiating with the prosecutor on your behalf or pleading your case before a judge. 


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