D blew .148 & .151 BAC. Under the (relatively) new law, is she required to have an interlock device installed? Haven�t found anything particularly helpful. Defense is arguing first Mata & �Rule of Lenity� to either average the two together (.149) or take the lower result. Creative, but I�m at a loss on a response. I know, in a breath test case with an above and below result, a jury can consider either, but I�d like to make a more substantial argument.

If you are talking conditions of bond, then those are always in the firm discretion of the court. I am not near a lawbook, but when all else fails, the Court does have the discretion to consider certain bond conditions for the safety of the public.

My position would be that D is nearly twice the legal limit, regardless of which number you go with. Needs interlock.

I believe that most prosecutors use the lower amount since the machine is not exact.Or should I have said instrument?

I've always heard that you must use the lower result, but of course I've always heard that from defense attorneys.

My reading of the statute is that you should actually use the higher result. The statute reads, "If ... an analysis of a specimen of ... breath, showed an alcohol concentration level of 0.15 or more at the time the analysis was performed."

Each individual breath sample given is a specimen and each one undergoes a separate analysis at a different time, albeit all within the same overall test. Only one of the two specimens analyzed need be over 0.15 to satisfy the statute. As long as it is shown in trial that the higher result was gained through a valid analysis, it shouldn't matter that another specimen came back slightly below the threshold amount even though that analysis might have been valid too.

If the judge wants to give the benefit of the doubt to the Defendant, I think you should remind her that the CCP grants a judge the discretion to require interlock as a condition of probation for any first offense DWI. The 0.15 requirement is only for mandatory interlock. So what better instance is there to opt for discretionary interlock for a first offense DWI than when the defendant, at best, just barely avoided mandatory interlock?

[This message was edited by Adam Poole on 08-29-07 at .]

quote:

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Originally posted by Ken Sparks:
I believe that most prosecutors use the lower amount since the machine is not exact.Or should I have said instrument?

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The results aren't different because the intoxylizer is inexact, but because the test subject doesn't blow exactly the same way each time. Both results are accurate for the two separate tests that are run. If the instrument is otherwise working properly, then either result could be used absent some legislative intent that only the lower be used.

And I agree with Adam, above. There is no need to nitpick, because the judge can order Interlock anyway. Unless your judge has some animosity toward the idea of requiring interlocks for DWI defendants, why wouldn't he/she order it?

Wes is right. I understand that some states who use the Intoxilyzer 5000 only require one breath sample. Texas requires two that must be within a specified range (.02) in order for the test to be considered valid.

Janette