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Effective Cross-Examination
is Key to Successful DWI Defense - continued
Pattern 2
By relating the "grading" of the client's breath
analysis to that of an exam at the lowest level of presumed
impairment, the percentage of inaccuracy permitted by
the law is emphasized.
By equating it to a final exam score, the inherent unfairness
of the machine is illustrated. Of course, additional chemical,
physiological and mechanical problems that create greater
variations can be utilized, provided they are presented
in a clear, simple manner.
| Q. |
You are aware that this machine is
really inaccurate, aren't you? |
| A. |
No I'm not. |
| Q. |
Isn't it true that there is a margin of error
of .02? |
| A. |
That's correct. |
| Q. |
Isn't it also true that if someone's test results
are .08, that person is presumed guilty? |
| A. |
Exactly. |
| Q. |
And if the alcohol content is below .08, there
is no presumption of guilt? |
| A. |
That's the law. |
| Q. |
So, that figure, .08%, is really important under
our law isn't it? |
| A. |
Absolutely. |
| Q. |
Now, since you have admitted there is a recognized
.02 variance permitted under the law, a breath alcohol
content of .08% could legally fall anywhere from
.06% to .10%, right? |
| A. |
Yes. |
| Q. |
To clarify, the law permits test results to be
used at trial if the subject actually has a 0.08%
blood alcohol level, but the machine reports it
anywhere from 0.06 to 0.10? |
| A. |
Yes. |
| Q. |
Well, a range of 0.06 to 0.10 on what should be
a .08 reading is actually a 50% variation, isn't
it? |
| A. |
What? |
| Q. |
A .06 is 25% lower than the .08 standard of presumed
guilt, isn't it? |
| A. |
Yes. |
| Q. |
And the .10 reading is 25% above the .08 reading
we assumed the subject really had, right? |
| A. |
Yes. |
| Q. |
In other word, if someone had scored 80 on a final
exam, but you are allowed to score him anywhere
from 60 to 100, that would be absurd and unfair,
right? |
| A. |
... |
| Q. |
But, that's exactly what would happen with a test
in a DUI case, right? |
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