Hardly a day goes by when Drinking and Driving doesn’t make the news somewhere. Here’s a small smattering of current news stories from across the county addressing the issue of drinking and driving.
The most common question asked of lawyers who do Operating While Intoxicated (OWI) or Driving While Intoxicated (DWI or DUI) work is: “Should I take a breath test if I’m accused of OWI, DWI or DUI?” Unfortunately, there is no uniform answer for this question. There are several factors that determine the best course of action.
The first question that you should consider is whether this is a first, second or third or subsequent offense. In the first offense scenario, there are times when it makes sense to take a test.
As a general rule, if you know you will pass a Datamaster breath test, you should take it. If you blow under the legal limit, you will not lose your drivers license unless you plead guilty or are found guilty of OWI. While a prosecutor can still try to prove you guilty of Operating While Under The Influence of Alcohol, they will have a difficult time proving you guilty if you have consented to and passed a breath test.
Another factor to consider is how important a temporary restricted license (work permit or school permit) is to you. On a first offense OWI a person who refuses a breath tests loses their drivers license for one year and is ineligible for a work permit or school permit for 90 days. If you take the test and fail there is a 180 day loss of license. If the person blows between .08 and .10 they are eligible for a temporary restricted license (work permit or school permit) immediately upon loss of driver’s license and they do NOT need to install an interlock in their vehicle. If the test result is between .10 and .15 the person is eligible for a temporary restricted license (work permit or school permit) immediately upon loss of drivers license and they do need to install an interlock in their vehicle. If the test result is above .15 a person must wait 30 days to get a work permit or school permit and must have an interlock installed.
A tricky situation arises when a driver has a driver’s license from a state other than Iowa. The advice concerning whether to take or refuse a test differs depending upon the state that issued the license. It is always wise to seek advice from an attorney who is licensed in the state that issued the drivers license and is knowledgeable on the OWI, DWI, or DUI laws of that state.
Another consideration is whether a person wants a deferred judgment. A person is ineligible for a deferred judgment if the refuse a breath test or if they blow above .15. With that said, some people are ineligible for a deferred judgment in any event. For example, if a person has a prior felony conviction or has two prior deferred judgments, they can not receive a deferred judgment. Additionally, a deferred judgment can not be granted when the driver was involved a personal injury accident.
The bottom line is there is no simple yes or no answer for whether a person should consent or refuse a breath test. It depends on each individual’s unique situation. While this entry dealt with first offense situation, it does not speak to all possible scenarios. It is no substitute for legal advice. I offer a free initial consultation at our Iowa City or Cedar Rapids office for OWI (DUI, DWI) and would be happy to answer your questions.
Imagine you are enjoying a pleasant evening on the pedestrian mall in downtown Iowa City. As the evening comes to a close, you feel fine and begin to drive home. After driving a few blocks a member of the Iowa City Police Department activates his lights and pulls you over for having a license plate light out. Fast forward now to you sitting at the Iowa City police station. The officer requests a breath test and you consent. After blowing in the machine a small piece of paper which resembles a cash register receipt prints out the result. So, how accurate is the result?
The answer is it depends on who you ask. The prosecution will produce a certification from the Department of Criminal Investigation (DCI) laboratory that professes a “margin of error” for the datamaster as being “.004 or plus or minus 5%, whichever is greater.” Thus, it would appear at first blush that the datamaster is extremely accurate. On closer examination, this “margin of error” would be better described as the “margin of illusion.”
The DCI lab created this margin of error formula without a working definition of margin of error. It essentially is a measure of how precise the datamaster can measure in a laboratory setting with strict controls using a simulator device instead of human breath.
In the scenario where you are sitting in the Iowa City police station being tested, the datamaster is of course not concerned with accuracy of simulators, it matters instead as to how accurate it is in measuring alcohol in human breath. The National Safety Council, for examples, states that when testing for human breath alcohol content, two tests should be taken from the same subject within two to ten minutes of each other. In that test scenario, the breath test should result should be within .02 of each other and the lesser result should be used. Thus that .087 breath test result could easily render a .067 result two minutes later if a duplicate test was administered.
Indeed, if the DCI lab was involved in a study in which human breath and blood where drawn contemporaneously from the same subjects. In many instances the breath registered at least .01 greater than the blood.
So, whats the margin or error for the datamaster when testing for human breath? The one thing that is certain is that it is NOT “.004 or plus or minus 5%, whichever is greater.”