In PA, one little number holds the key to your future when it comes to DUI. It’s called your Blood Alcohol Concentration (or BAC) if the result comes from your blood. If it comes from your breath, scientists call it the BrAC. It is a scientific measurement. The BAC is the amount of alcohol the breathalyzer or blood testing equipment said was in your bloodstream at the time of your testing. It doesn’t measure your BAC at driving. The higher the number, the harsher the punishment you’ll face, if convicted. Most of the time, we find the BrAC is not scientific at all.
At first, your BAC may seem like an open-and-shut case. After all, numbers don’t lie, right? A breathalyzer is a breathalyzer, right? So how can you beat a DUI breathalyzer? With an experienced DUI lawyer from The McShane Firm, that’s how.
All of our attorneys are certified to own and operate the same roadside breathalyzers used by Pennsylvania state troopers. They all know how to spot equipment and operator flaws that can make your “magic number” inadmissible in court.
Recommended additional reading:
No machines is perfect. They break. They malfunction. Old. The equipment the police used to measure your breath or your blood at the time of your arrest is no exception. The police must keep total paperwork proof that these machines are constantly properly calibrated and adjusted to record incredibly small amounts of alcohol. The police must prove that they used the machines properly. One tiny mistake could affect your reading. Also, a false positive result (alcohol reading when there is no alcohol there) happens. See some of our below embedded videos.
Why you can’t do it yourself
Would you be able to identify or prove if the roadside breathalyzer used in your DUI case was faulty? The highly-trained DUI lawyers of The McShane Firm can. Using the latest forensic science, we can challenge the results of your breath or blood test to provide you with the strongest DUI defense possible.
If the police officer who stopped you made any error in roadside procedure, the results of your DUI breathalyzer test might be inadmissible as evidence in court. These errors could be:
- An invalid reason for your stop,
- An observation period that was too short,
- A failure to read you the proper warnings
Would you be able to tell if the trooper who pulled you over followed the correct roadside protocol? Our DUI lawyers here at The McShane Firm know – and even teach – the same NHTSA procedures required of all Pennsylvania State police officers. Who better to have in your corner defending your rights in the courtroom?
Don’t let one little number decide the fate of your license and your freedom. Contact us today and put the aggressive and knowledgeable DUI lawyers at The McShane Firm to work on your case. We might be able to make that “magic number” disappear
Motion Comes on the Heels of the Ruling in Commonwealth v Schildt
In a latest development, The McShane Firm has motioned to have breath testing banned in the state of Pennsylvania. This comes on the heels of the ruling of Dauphin County Judge Lawrence F. Clark in the case of Commonwealth v Schildt (complete ruling).
Attorney McShane filed a motion to dismiss all current Pennsylvania DUI cases involving breath testing.
Media Coverage of This Important Development
This step comes after testimony in a multi day hearing. Attorney McShane revealed that the manufacturer of the Intoxilyer 5000EN, CMI Inc. was not compliant with state regulations. In his ruling in Commonwealth v Schildt, Judge Lawrence F Clark, Jr. wrote,
“However, notwithstanding any such “verifying” undertakings performed by the manufacturer (CMI) on its own gas chromatograph, the bare FACT remains that the entity (CMI) that is performing the initial calibration of the breath testing device is using a simulator solution which was prepared (and allegedly subjected to some sort of a gas chromatographic analysis) by the same manufacturer and calibrator of that device. The regulatory requirement of a “gas chromatographic analysis by a laboratory independent of the manufacturer” has been blatantly ignored and obviously violated.”
This ruling showed how the BAC readings from the Intoxilyzer 5000EN breath machine are not reliable. Judge Lawrence F Clark, Jr. wrote in his opinion,
“As a result of the evidence produced at the hearing, it is now extremely questionable as to whether or not any DUI prosecution which utilizes a reading from an Intoxilyzer 5000EN breath testing device could presently withstand scrutiny based upon the startling testimony of the commonwealth’s own witness, Mr. Faulkner, at the hearing,”
Ruling in Commonwealth v Schildt May Open the Doors for Breath Cases to be Challenged?
Media Coverage of This Important Ruling
On December 31, 2012 Dauphin County Judge Lawrence F. Clark in the case of Commonwealth v Schildt ruled that the current calibration methods for Pennsylvania breath testing machines leave the devices inadequate to measure samples outside of the range of 0.05% to 0.15%. The ruling challenged thousands of the Highest BAC (over 0.16%) cases.
In his ruling, Judge Clark wrote,
“the utilization of any instrument reading above or below that range cannot, as a matter of science and therefore the law, satisfy the Commonwealth’s burden of proof beyond a reasonable doubt on an essential element of a charged offense for an alleged violation of 75 Pa.C.S.A. §3802(c) of the Pennsylvania Motor Vehicle Code.”
(View the complete ruling in Commonwealth v Schildt).
What McShane had to say
“Would you use a baby car seat with your child if it wasn’t proven to work correctly before you used it?
Of course not!
But that is exactly what the prosecutors are doing when it comes to evidentiary breath testing for DUI all across the Commonwealth of Pennsylvania.”
What was the big deal…
Current regulations from the Department of Health and PennDOT require the police to calibrate yearly or more often depending on their performance. During the calibration process, the police only test solutions of 0.05%, 0.10% and 0.15%.
Attorney McShane argued that this method constituted a range of 0.05% to 0.15% that could be tested with scientific validity. However, samples outside of that range could not be scientifically proven. He presented comprehensive expert reports from, as the Court noted, “heavily-credentialed scientists.” These scientists supported the claim that tests that fall outside the range of 0.05% to 0.15% lack scientific backing. After reviewing the expert testimony and reports, the court ruled in favor of Attorney McShane’s client. Thus, the court called into question all breath testing. At that time, it involved thousands of cases across Pennsylvania.
2nd DUI With Refusal
I couldn’t have asked for a better attorney than Tim. He was so patient with me through the whole process and answered every question I had regardless of how stupid they were. This was my second DUI in 4 years and I refused any testing which calls for an automatic license suspension. Tim fought Penndot on the refusal charge and won and also took my DUI case to trial and won. NOT GUILTY on everything. He is worth every penny I spent. If you are looking for a great attorney I would highly recommend Tim.
Justin McShane and his entire staff made me feel like they took my case personally and really cared about a suitable outcome of my case. All my calls and questions and emails were answered very quickly. I would highly recommend The McShane Firm for any representation.
The best of the best in DUI cases. Worth every penny. 8 years later and I still can’t thank you guys enough.
Best DUI Defense in PA
I was falsely accused of Driving Under the Influence with Reckless Endangerment of my young son in the car. I was in jeopardy of losing custody of my only child. Thanks to Tim, this tragedy was avoided. Tim strategically fought for me to convince the jurors that the Commonwealth’s witnesses should not be believed. He used his experience to ‘splain the truth to the jury. With just the right balance of charm, mild indignation, logic, truth telling, humor, personal anecdotes, relationship building, power of persuasion, professional acumen, trial experience, and so much more, Tim achieved success for me. He’s worth every penny. Tim did great, and I’ll always be grateful!