Iowa City, IA man Levi Carter was arrested for DWI, Iowa’s version of Driving Under the Influence last Friday night after driving his car 55 in a 25 mile per hour zone and ultimately crashing. After contacting officers determined that Carter was impaired he was subjected a breath alcohol test where he registered initially a .467 on his first blow and on the second blow attempt the machine simply registered “HI” before the machine collapsed in its own drunken stupor from Carter’s chemical weapon breath. Ok, that actually didn’t happen but this Iowa guy did blow LITERALLY off the charts! Every State has set .08 as the legal limit where a Prosecutor enjoys a rebuttable presumption that the person he’s trying to convict is impaired, while Florida allows for no presumption if the blood alcohol level is above a .05 but below a .08 and a presumption of no impairment if the blood alcohol level is .05 or below. There is no language on what the effect of a breath test above .40 is. Call your congressman.
Given this scenario to prove this as a DUI in Florida the State must show that Carter drove or was in actual physical control of a vehicle and while doing so he had a blood alcohol level of .08 or above. From the news report he crashed his vehicle and had a passenger who represented to the police that they thought he was too impaired to drive. This witness is important as with a crash, an accident exception applies allowing a lay person to witness certain elements of a crime as a substitute for a policeman. Generally for a misdemeanor arrest an officer must witness all elements of a crime, with certain exceptions of course. The breath test result could satisfy the impairment portion of the allegation. Add those two pieces together and your DUI recipe could be complete.
Wait a minute. Lets talk about this breath test machine. Never in my life after being a Prosecutor and a DUI lawyer have I heard of a breath test this high. It’s a pretty well accepted fact, one that the Clemson University Health Center adopts, that the human body is likely in a coma if their blood alcohol level is between .40 and .50. In fact the Clemson University Health Center states on their webpage that at these levels, one’s “nerve centers controlling your heartbeat and respiration are slowing down, and it’s a miracle if you survive.” So what. The “what” is that if science shows someone is playing dodge ball with the grim reaper at those levels, an argument can be made that the breath test machine is busted or drunk itself. Granted there would be other signs of impairment but depending on the circumstances, other possibilities could be present as the cause. Time will tell for Carter.
At the end of the day, breath test machines across the country have repeatedly shown flaws in their results. No one really knows how they work other than the manufacturer and they aren’t talking. They break, they get improperly altered by law enforcement, and they aren’t always properly maintained. Simply put, they can be flawed. People very often give breath tests that seem impossibly high. Maybe they are. If you’ve been charged with a DUI in the Tampa area contact our DUI attorneys at 813-444-7435 or at 727-771-3847 today!