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Saskatchewan Attorney Argues For Stricter Procedures in Initial DUI Investigations

Wednesday, November 28, 2012

A green, overturned beer bottleIn Saskatchewan, Canada an attorney is arguing that the possibility of a false-positive on a preliminary breath test machine, if used to secure probable cause for an arrest, is grounds to suppress evidence gathered after the arrest. In the now twice-appealed, five-year old case, a Saskatchewan man was pulled over and given a preliminary breath test. He told the officer that he had had a drink five minutes before he left the bar. The preliminary breath test showed a positive result, and the individual was arrested and taken to jail where he blew a .10 BAC on a state-administered breath testing machine. Is it possible that the results of preliminary breath tests were made inaccurate because of how little time passed between the defendant's last drink and when he took the test?

As is the case in the United States and Canada, hand-held breath test machines are so inaccurate that only a positive or negative is admissible in court and not a numerical reading or breath result number. One of the reasons for the unreliability of hand held alcohol breath testing devices is residual mouth alcohol. If a an individual has had a drink within fifteen minutes of taking a roadside breath test, mouth-alcohol can skew the results. In this case, the defendant told the policeman that he had had a drink five minutes before he left the bar, but the policeman proceeded with the initial breath test anyway, then arrested the defendant based on its results. Though the case is still pending, the fact that the officer secured probable cause and incriminating evidence based on a possibly inaccurate roadside breath test weakens the Government's position in court. Although the arguments in this case may not apply to legal jurisdictions in the United States, it presents a useful defense in many Georgia DUI cases.



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