Retrograde extrapolation is a technique used by police departments and prosecutors to determine and prove a person’s blood-alcohol level at the time they were operating a vehicle, as opposed to when the sample was actually collected. Crime lab chemists will apply a formula that approximate the average rate of decline and a person’s blood-alcohol level and use that to estimate a person’s blood-alcohol level at a time prior to the sample being taken. Although Arizona courts accept retrograde extrapolation as a method of proving intoxication, it is far from a perfect science.

The results of a retrograde extrapolation can be inaccurate for several reasons. First, each person metabolizes alcohol at a different rate, and simply applying the average rate of metabolization to every sample guarantees some inaccurate results. Furthermore, if a defendant consumed alcohol shortly before their arrest, their blood alcohol level may increase rather than decrease in the time before their sample is taken. If standard retrograde extrapolation is applied, the result would be inflated and inaccurate.

In the recently decided case, the defendant was charged with an aggravated DUI after he was involved in a single-car accident and police were called. He was arrested, booked in jail, and given a breath test over 2 hours after he was stopped. His test result was nearly three times the legal limit in Arizona, and he was subsequently charged with aggravated DUI. According to the case history discussed in the appellate opinion, prosecutors used retrograde extrapolation to estimate the defendant’s blood alcohol content at the time of his arrest. The defendant was convicted of the charges against him and sentenced to a significant prison term.

The defendant appealed his conviction. Among other issues, he challenged the propriety of using retrograde extrapolation to estimate his blood alcohol level. Because his blood-alcohol level was nearly three times the legal limit when the test was administered, the high court was not convinced that the use of retrograde extrapolation to estimate an even higher BAC when he was operating a motor vehicle was prejudicial to his defense. Essentially, the court found that with or without retrograde extrapolation, the state could have easily proven that he was over the limit while he was driving the vehicle. The court also rejected the defendant’s other contentions, and his conviction was affirmed.

Are You Preparing a Defense to Arizona DUI Charges?

If you or someone you know has been arrested or charged with a DUI or other crime in Arizona, retaining an experienced criminal defense attorney can make the difference between a conviction and a dismissal or acquittal. The Law Office of James E. Novak is staffed by qualified attorneys who know how to fight against Arizona DUI charges. James Novak is an experienced Maricopa County criminal defense attorney who can skillfully handle a variety of Arizona criminal cases, including DUIs. We can help you develop the best defense to the charges brought against you. To schedule a free consultation and discuss your case today, call 480-413-1499.

Arizona has what is called an “implied consent” law. Under this law, motorists agree to submit to a breath test when they are pulled over by a police officer, and the officer has reasonable grounds to believe that they are intoxicated. Of course, a police officer cannot physically force someone to take a breath test. So, motorists always have the ability (not necessarily the right) to refuse a test.

When someone refuses an Arizona breath test, that starts a series of events in motion that cannot be undone. As soon as someone refuses a breath test, the officer will take their driver’s license, and their driving privileges will be suspended. The length of the suspension will depend on how many times the driver has refused in the past:

• First refusal – One-year license suspension
• Second refusal (within seven years) – Two-year license suspension
• Third-refusal (within seven years) – Two-year license suspension

Even if someone changes their mind seconds later, the consequences of a refusal will remain in place. However, motorists will be given a temporary driving permit that will remain valid for 15 days. During this period, the motorist can challenge their license suspension. Drivers who need a license for work or school may be able to get their license back after 90 days, provided they install an ignition interlock in their car. Of course, the installation and monthly maintenance costs of these devices are quite high.

Refusing a breath test does not mean that the state cannot prosecute someone for drunk driving. While the prosecution in these cases will not have the results of any chemical tests, they will proceed with circumstantial evidence of intoxication. For example, the following facts may be used to argue that a driver was intoxicated:

• The motorist was driving erratically, or got into an accident;
• The driver exhibited signs of intoxication, such as watery eyes or slurred speech;
• The officer smelled alcohol on the driver’s breath;
• The driver was unsteady on their feet;
• There was an open container of alcohol in the car; or
• The driver admitted to consuming alcohol.

There are, however, defenses to Arizona DUI refusals, and anyone who is facing a refusal case should consult with a dedicated attorney as soon as possible.

Have You Been Arrested for an Arizona DUI Offense?

If you have recently been arrested for drunk driving in Arizona, contact Attorney James E. Novak for immediate assistance. Attorney Novak is a veteran Tempe DUI defense attorney with decades of hands-on experience defending clients in every type of DUI case. To learn more, and to schedule a free consultation, call 480-413-1499 today.

Putting the validity of the traffic stop aside for the moment, once an officer determines that a driver is potentially intoxicated, the driver is asked to blow into a tube that is connected to a small machine. The machine analyzes the alcohol content in the driver’s breath, and returns a number that represents an approximation of the person’s blood-alcohol content (BAC). In Arizona, the legal limit is a .08 BAC.

For those unfamiliar with the process, it may seem that once a result above .08 is returned there is no defense and the only option is to plead guilty. The reality is that most people who are arrested for DUI end up pleading guilty to negotiated or reduced charges because it is easier and quicker than taking the case to trial where, if they are found guilty, they may face a more serious sentence. However, if challenged, the prosecution must be able to prove that the machine used to administer the test was accurate, properly calibrated, and correctly used by the police officer.

According to a recent New York Times article, the accuracy of breath-alcohol testing machines has recently been called into question. The article notes that there are several concerns associated with the accuracy of these machines. Breath-alcohol testing devices are highly sophisticated, and require frequent calibration to ensure they are accurate. The article notes that many jurisdictions do not have officers that are trained to calibrate the machines. There have also been some devices that contained errors in the software used to analyze the alcohol content of a driver’s breath. And in one case, inspectors found that rats were nesting in the machines that were not currently in use.

Unfortunately, courts have a history of preventing defense attorneys from accessing the data that would help them better understand how these devices work. However, as more reports detail the problems with breath-testing machines, courts may start to change their attitudes.

Have You Been Arrested for Driving Under the Influence in Arizona?

If you have recently been arrested for an Arizona drunk driving offense, contact Attorney James E. Novak for immediate assistance. Attorney Novak is an experienced Arizona DUI attorney with a reputation for zealously representing his clients at every stage of the case. Attorney Novak represents clients in and around the Tempe area, including throughout Maricopa County and in Chandler, Mesa, Phoenix, Queen Creek, and Scottsdale. To learn more, and to schedule a free consultation to discuss your case with Attorney Nova today, call 480-413-1499.

Additional Resources:

• A.R.S. 28-1381 – DUI Laws
• A.R.S. 28-1382 –Extreme DUI Laws

Practically speaking, absent physical coercion, breath testing cannot be performed without a driver’s consent. However, under Arizona’s implied consent statute, any motorist who “operates a motor vehicle in this state gives consent … to tests of the person’s blood, breath, urine or other bodily substance for the purpose of determining alcohol concentration or drug content” if they are arrested for suspicion of driving under the influence of drugs or alcohol. Thus, while a motorist can physically refuse to provide a sample, they do not have the legal right to do so. Of course, to rely on the implied consent statute, police must provide a defendant with their rights and the consequences of refusal.

What Happens When Police Don’t Follow the Law?

Generally speaking, when police obtain evidence obtained through improper, illegal, or unconstitutional means, that evidence must be suppressed. This concept is referred to as the exclusionary rule, and is a judicially-created doctrine to deter improper police conduct. Indeed, the United States Supreme Court has held that when a defendant’s blood was taken without a warrant or his consent, the blood-test results were inadmissible. The Court based its holding on the inherent privacy interest a person has in their blood and the intrusive means of obtaining a blood sample. However, in a subsequent case, the Court distinguished between taking a defendant’s blood and using a breath sample. This left an open question regarding the admissibility of breath-test evidence that was obtained in violation of the implied consent statute.

In a 2018 case, an Arizona appellate court issued an opinion allowing the use of breath-test evidence that was obtained improperly. In that case, the court found that the warnings provided to the defendant were coercive, and that his blood was taken in violation of the implied consent statute. However, relying on the distinction between blood and breath evidence, the court concluded that the exclusionary rule does not apply to a violation of the implied consent statute.

The court explained that because the exclusionary rule in Arizona is judicially created, courts are able to craft exceptions. In this case, the court reasoned that the exclusionary rule was created to deter violations of a defendant’s constitutional rights and because there is a diminished privacy interest in a person’s breath, the Fourth Amendment is not implicated.

Thus, under the court’s ruling, even illegally obtained breath samples may be used. However, it is important to note that not all illegally obtained breath samples will be admissible. Samples that were taken in violation of a defendant’s constitutional rights will still be suppressible.

Have You Been Arrested for an Arizona DUI?

If you have recently been arrested for drunk driving in Arizona, you should contact the Law Office of James E. Novak as soon as possible. Attorney Novak is an experienced Arizona DUI defense attorney who routinely handles all types of DUI cases and is familiar with this evolving area of law. To learn more about how Attorney Novak can help you defend against the charges you are facing, call 480-413-1499 to schedule a free consultation today.

Additional Resources:

• Missouri v. McNeely
• Birchfield v. North Dakota

Other Articles of Interest from The Law Office of James Novak’s Phoenix DUI Blog: How Can Someone Fight an Arizona DUI Charge?, Phoenix DUI Law Blog, January 24, 2019

Are Arizona DUI Checkpoints Legal?, Phoenix DUI Law Blog, February 12, 2019

The fact of the matter is that there are many potential flaws when a police officer measures sobriety. We have talked about DUI breath test problems and false positives many times. Right now, we want to address a popular topic about breathalyzer tests. Some people say that using mouthwash can cause you to fail a breathalyzer. Let’s look into the issue in more detail.

How a Breathalyzer Works

A breathalyzer is a device that’s used to estimate a person’s blood alcohol content (BAC) by taking a breath sample. A person blows into the device, which then notes the presence of alcohol in that person’s breath.

Are Breathalyzers Always Accurate?

No. In fact, there are many flaws inherent in breath tests.

Think about it: if someone is trying to measure the alcohol content of your blood, why would they use your breath to do this? Breath and blood are not the same, which can lead to people who are legally sober being charged with drunk driving.

There are potential contaminants in the mouth and lungs that could affect the overall results of a breathalyzer test. This means a false positive and an unjust charge of drunk driving.

Residual Alcohol in the Mouth

One of the key flaws of breathalyzer tests involves residual alcohol in a person’s mouth. Whenever someone has an alcoholic beverage, some of that alcohol can remain in the mouth rather than being swallowed. The alcohol can wind up in someone’s saliva, for instance, or under the tongue or in between the teeth. If there is alcohol in the mouth, the presence of this alcohol can lead to a higher breathalyzer reading than normal.

Keep in mind, however, that residual alcohol in the mouth does not last that long. It will have disappeared on its own within 20 minutes or so. However, that may be enough time to throw off a breathalyzer depending on when a person is pulled over and the test is administered.

The Alcohol Content of Mouthwash

Some mouthwashes such as Listerine contain alcohol, which helps kill oral bacteria and keep the mouth fresh. If you rinse you mouth out before heading out the door and are pulled over soon after you started driving, there is a chance that you may blow a .08 BAC simply because of the presence of residual alcohol in your mouth.

Certain lozenges, medications, and cough drops may also have a similar effect on a breathalyzer test, though maybe not as pronounced as mouthwash.

So Is It True That Mouthwash Affects Breathalyzers?

Yes.

This is not just an urban legend or some unsubstantiated rumor on the internet. While the circumstances are very narrow when it comes to mouthwash affecting a breathalyzer test, the issue may arise. Should the matter arise, it’s important to have a skilled DUI defense attorney on your side to help ensure your rights are respected and you receive a fair hearing. It may be possible to get your charges dropped.

Learn More About DUI Legal Defense

For more information about your legal rights and options following a drunk driving charge, be sure to contact an experienced DUI defense attorney today. Our legal team will fight for you in your time of legal need.

There are flaws with breath testing, however, and a Phoenix DUI defense attorney can help address them. Let’s consider the problems with breath tests and then see whether or not you should refuse a breathalyzer test from a police officer.

Problems with Breath Tests to Assess Sobriety

While breathalyzers are simple, they are quite flawed. When it comes to drunk driving, it’s important that the blood alcohol content (BAC) be measured, not the amount of alcohol on a person’s breath. Since the breathalyzer cannot possibly measure actual BAC and instead notes concentration of alcohol in the breath, the results are inherently flawed with regard to measuring BAC.

Can I Refuse to Take a Breathalyzer Test?

Technically yes, you can refuse to take a breathalyzer test before an actual arrest is made. If you are arrested, you will then be asked to take a blood or urine test, which will likely be administered at the police station. You can continue to refuse to take chemical tests, but there are penalties for doing so.

Should I Refuse to Take a Breathalyzer Test?

The answer is usually no. The fact you “can” do something is not always the same as if you “should” do something.

Refusing to take a breathalyzer test might not be in your best interests. In fact, it may cause more problems than you anticipated. The state of Arizona has Implied Consent laws. Under these laws, anyone who is operating a vehicle at the time of a traffic stop can be subjected to some sort of chemical test to measure BAC.

The consequences of refusing a chemical test can sometimes be worse than a DUI charge.

Consequences for Refusing a Breathalyzer Test

If you refuse to submit to a breathalyzer test or other chemical tests, there is a strict procedure that’s followed.

Upon refusal to take a test, you will be placed under arrest and your driver’s license will be confiscated from you. You will be issued a temporary driving permit good for 90 days. The arresting officer will make a sworn report detailing your refusal to take a chemical test.

Your driver’s license will be suspended for at least 1 year for your refusal to take a test. After 90 days of license suspension, you can request the installation of an ignition interlock device, which is a mini-breathalyzer in your car. You vehicle will not be able to start unless the ignition interlock device has been blown into and demonstrates sobriety.

License Suspension for Chemical Test Refusal

The duration of license suspension varies depending on how many refusal offenses you have had within in 7-year period. The duration is as follows.

• First Offense – 1-year suspension
• Second Offense – 2-year suspension
• Third Offense – 2-year suspension

Speak with an Experienced Drunk Driving Lawyer

For more information about your legal rights and options following a drunk driving charge, be sure to contact a skilled DUI and criminal defense attorney today. The team at The Law Office of James Novak is here to help you in your time of legal need.