CAN YOU WIN AN UNDER-21 DUI CASE WITH A BREATH TEST RESULT?

By Ben Sessions on June 30th, 2024 in

I have a client that is about to go trial on a charge of DUI per se and DUI less safe.  She is charged with driving while having an unlawful alcohol concentration of .02 grams or more.  She was under 21 years of age when she was arrested.  She submitted to the breath test and the results showed that her breath alcohol level was less than .08 grams.

We have had a hearing upon the admissibility of the breath test, and the court has ruled that the breath test will be admissible in the trial of the case.  Nonetheless, we plan to fight the DUI charge.

The breath test in this case, and in every under 21 case with a test result under .08 grams is particularly troubling to me.  The problem stems from the system of calibrating the Intoxilyzer 5000 in Georgia.  Our calibration program involves an employee of the Georgia State Patrol visiting the machine once a quarter and checking the accuracy of the machine using a “known solution.”  The known solution supposedly has an alcohol concentration of .08 grams.

Never once during the calibration process are breath testing machines tested to determine whether they can accurately detect alcohol concentrations below .08.  These breath testing machines are relied upon on a daily basis to prosecute drivers under the age of 21 for driving with an unlawful alcohol concentration below .08 grams, but no effort has ever been made to determine whether the machines function at this lower level.

Should these results be accepted without any effort being undertaken to verify their acceptability?