Federal DUI partial breathalyzer tests
Today we’ll review an appeal ruling that has had a big impact on Federal DUI cases. I’m talking about U.S. v. Brannon (No. 97-10378.) This is a controversial ruling for one reason. The breathalyzer test admitted as evidence was incomplete and possibly inaccurate. Nevertheless the United States Court of Appeals, Ninth Circuit has upheld partial tests as admissible.
DUI Arrest and Breath Testing
On June 6th 1996, Kevin Brannon drove to McClellan AFB in Sacramento County, CA to drop off a passenger. He was stopped at the gate to show military ID. Since he did not have one he was instructed where to make a U-turn and leave the base. He did not make the U-turn where he was told and was stopped again.
During the second stop, Staff Sergeant David Trudel noticed an open container of alcohol in the car as well as the odor of alcohol on Brannon’s breath. Brannon was asked to perform several field sobriety tests, but did not perform to Trudel’s satisfaction. Brannon insisted that an old knee injury prevented him from completing the tests. He opted to take a breath test rather than blood or urine. The test was administered by Staff Sergeant Eddy Sierra on a Intoxilyzer 5000.
Brannon was instructed to blow into the machine hard enough for it to register. The machine registered .15 for 2 seconds before Brannon stopped blowing. On his second attempt Brannon puffed out his cheeks before he started coughing, but no air was blown into the machine. Brannon claimed bronchitis had made it difficult for him to complete the test. The Intoxilyzer 5000 printed “Subject Test Refused”, and “Deficient Sample”. No other test was offered to Brannon.
Call Mark Sollitt for help with DUI charges and criminal defense representation.
1 (800) 420-5667
DUI Charges and Trial
Brannon was charged with several crimes including CVC § 23152(a) & CVC § 23152(b), driving under the influence of alcohol & driving with a BAC over 0.08%. Brannon requested that the court suppress the breathalyzer results as they were incomplete. The court heard from an expert witness who described how the machine worked, and testified that the machine used on Brannon was in good working order. On this testimony the court allowed the breath test as evidence.
Reasoning and Dissent
The court described the breath test as similar to a child spitting out a old-fashioned thermometer sooner than the doctor recommended. If the thermometer read 101, then surely the child has a fever even though the test was incomplete.
The dissenting opinion argues that the manufacturer of a device knows it limitations best. If the device printed a report that said “Deficient Sample”, then the test is inaccurate no matter whether accurate results would have favored the defendant or plaintiff. The results can be skewed if the subject burps alcohol vapor just before or during the test.
How this applies in California
Now the circumstances where a single partial breath test can be admitted as evidence in California are very specific. California law requires two breath tests to be admissible, but in this case, the arresting officers were military personnel on Federal land. Brannon’s bad luck saw him charged in Federal court rather than a California court. In a California court the evidence would have likely been suppressed. Then again if he had been arrested by California Highway Patrol, Sacramento Sheriff, or Sacramento police, the test would have been administered properly. If he had a BAC over 0.08% he would have been facing DUI charges just the same.
Special thanks to Life Safer of Northern California