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DWI Breath Testing and the Intoxilyzer

The legislature has decided that police officers no longer need to supply an individual with a captured sample of their breath when that individual takes a breath test subsequent to a DWI arrest. Captured samples, which were caught in clear tubes, could be sent by individuals to an independent lab for testing. This acted as a check on the accuracy of the Intoxilyzer machine. There is a new process. The individual who submits to the test either waives his/her right for an additional test or agrees to an independent blood draw. In other words, the second sample is now a blood sample, not a sample of breath taken from the machine.

The new rule sets out how this happens. Specifically, each arresting department now has blood collection kits that, when used, will be sent to the State Forensic Lab who, in turn, can release the samples for independent testing.  This new rule probably makes no practical difference, as those second samples when tested were very rarely out of tolerance, in other words different from the reading that the machine provided. When there was a reported difference, that difference was usually always higher. In other words, the Intoxilyzer provided a result that was lower than the actual blood alcohol content of that individual, not higher.

Police officers may tell individuals that in order to get the independent test, they can go to the nearest hospital or ConvenientMD Urgent Care facility and have their blood drawn. But without the Police first contacting these facilities, explaining to them the new law, and obtaining their willingness to do the draw the ability to get a second sample is nearly impossible. Hospitals or other such facilities are almost certainly not going to be responsive to an individual walking in unannounced and asking for an independent blood alcohol test. If the facility does do a blood draw there is no guarantee that that facility has any idea what the law is regarding what happens after the blood is drawn. If you are in this situation follow the steps for an independent sample. If you aren’t provided what is required under the law the court may order the suppression of any breath test.