Can you beat a breathalyzer test?

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Memphis Breathalyzer Tests

We live in an age remarkable for its precise scientific instruments. Astronomers tell us they can not only find planets orbiting stars dozens or even hundreds of light-years away, but even tell us what kind of atmosphere those worlds might have; electron microscopes allow medical researchers to examine the structure of a single virus or to map the human genome; some high-speed cameras can record up to a trillion frames a second, fast enough to catch light waves in slow motion.

A police officer can ask you to blow into a small device that – supposedly, at least – will measure alcohol in your blood down to a tiny amount, the proverbial “.08” threshold that can decide whether you face charges for drunk driving.

Back in the old days, before breathalyzer technology existed, police had to rely on more subjective ways to decide whether you were DUI: bloodshot eyes, open containers in the car, the smell of alcohol on your breath, slurred speech, whether you could pass field sobriety tests. These techniques were, and are, subject to simple and subjective defenses: you were tired. Your prescription medication was causing side effects. You were distracted. In the end, it’d be your word against the officer’s.

But how do you argue against a breathalyzer? It’s not like you can quibble, “But officer, that looks like a .07 to me.” No, that “.08” or higher reading just stares back at you, like there’s nothing you can do about it.

Or can you?

Although the science behind breathalyzers continues to advance, it is not yet perfect. Studies have demonstrated that under the right circumstances, these measurement devices can produce an inaccurate result. People have tried to take advantage of those circumstances, or to even create them, in a variety of ways. Some never work. Others, however, just might. Let’s take a look at some techniques to confound a breathalyzer, to see whether and how they might help you to unsettle “settled science.”

What won’t work

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Before we consider the more plausible was to challenge a breathalyzer test, we’ll dispense with some myths and urban legends that only succeed in making those who try them look foolish:

  • Putting pennies in your mouth. Some people have advocated, and a handful have even tried this idea in the hope that copper from the penny will transfer to their mouths, and that this metallic trace will confuse a breathalyzer. This might succeed in leaving a bad taste, and depending on where that penny has been before you put it under your tongue it might have other undesirable effects. But will it throw off the breathalyzer? No.
  • Using mouthwash, mints chewing gum or other breath fresheners to hide the odor of alcohol or your breath (or in more extreme cases, eating your own underwear or putting your own feces in your mouth). This tactic might make it harder for a police officer to smell what you’ve had to drink, but breathalyzer technology doesn’t detect alcohol the same way that your nose does.

What might work

Although there are no “trick products” that will work to fool a breathalyzer, that does not mean that a breathalyzer’s accuracy cannot be compromised. Let’s take a look at ways with some scientific basis behind them to call into question breathalyzer results.

  • Challenging the mechanical reliability of the breathalyzer. Just like you need to periodically maintain and tune up your car to keep it running in top form, as a precision instrument a breathalyzer must be regularly checked and calibrated and records maintained of when the calibration took place and who did it. If you can show that the breathalyzer used on you was not properly calibrated, this can cast doubt on whether it gave an accurate measurement.
  • Challenging the police officer’s technical competence or legal basis to use the breathalyzer. This can take the form of calling into question the officer’s training in how to operate the device, or whether the officer lacked either the reasonable suspicion to stop your vehicle in the first place or the probable cause to believe you were DUI before having you blow into it.
  • Challenging the officer’s testimony at trial. Often by the time a police officer employs a breathalyzer on you, another officer will be present. But if only one of these officers is present to testify against you, and he or she is not the one who used the breathalyzer, then you might have an argument that you are being denied your right under the Sixth Amendment to the US Constitution to confront your accuser.
  • Introducing environmental conditions that could affect the accuracy of the breathalyzer reading. There are several ways in which the introduction of some external element, such as alcohol in your mouth, might compromise the breathalyzer result. We will go over some of these in more detail below.

How external factors can affect breathalyzer results

Lung capacity of the test subject. The breathalyzer measures alcohol that has been exchanged from your bloodstream into your breath through alveolar air the upper passages of your lungs. It is possible to argue that a person with larger lungs will have less alcohol density in this alveolar air, which might lower the breathalyzer reading for larger individuals.

Breathing patterns. Holding your breath before taking the breathalyzer test, or keeping your mouth closed for at least five minutes before, or even burping might affect the concentration of alcohol in the breath sample because of the presence of small amounts of gastric residue or undigested alcohol in the mouth can result in a reading that is higher than is actually the case.

Chemicals that interfere with the breathalyzer’s function. The penny-in-the-mouth trick may not work, but its premise – that a breathalyzer can be fooled when it picks up something “extra” in the air sample – has some merit. People have claimed false breathalyzer readings in reaction to:

  • Breathing fumes from paint thinners or lacquers.
  • Ingesting over-the-counter products that contain alcohol, such as cough syrups or other cold medications and sleep-aids.
  • Drinking some types of energy drinks, non-alcoholic beverages or carbonated drinks.
  • Eating certain foods such as ripe fruits, hot sauces, breads or dishes prepared with alcohol.
  • Skin products like after-shave, perfume or hand sanitizers.

This list is by no means exhaustive. To give you an idea of how such substances can affect a breathalyzer sample, consider a couple of examples: ketosis, and hand sanitizers.

Ketosis

Breathalyzers detect the presence of alcohol in your breath, but they are not choosy about the kind of alcohol they find. Your alcoholic beverage contains ethanol, but even if you haven’t been drinking your digestive system can produce isopropanol through a process known as “ketosis.” This can happen if you are observing a low-carb diet, have been exercising strenuously, or have diabetes: your body breaks down fat cells to product energy, producing acetone which then breaks down into isopropanol that the breathalyzer picks up.

Note that it is unlikely that ketosis alone would be enough to produce a .08 or higher blood alcohol content reading on a breathalyzer. But if you have drank enough alcohol to put you close to the legal limit, ketosis-derived isopropanol in your system might be just enough to put you past it.

Hand sanitizers

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To start with, we are not talking about you swallowing hand sanitizer fluid, or even putting it on your own hands. Rather, if the person administering the breath test to you uses hand sanitizer shortly before doing so, the breathalyzer can read the ethanol in the hand sanitizer. And unlike ketosis-driven results, the hand sanitizer alone can lead to DUI-level breathalyzer readings, even as high as .15 is some cases.

How likely is it that your breathalyzer test will give a bad result?

By now you can see that although a breathalyzer is a precision measuring instrument, it is not infallible. Nor, however, is there such a thing as a “magic bullet” way to beat a breathalyzer test. Even the possibilities that have some scientific basis to them, like ketosis or hand sanitizers, may have little or no effect on your test result.

What is more, police officers and prosecutors are well aware of these possible defenses to a DUI charge, and the better ones train to minimize the risks of a false breathalyzer reading. They will wait for mouth alcohol to dissipate. They will wear gloves. They will take more than one breath sample. They will look for other ways (like field sobriety tests) to back up their decision to arrest you for drunk driving.

Something else to take away from this discussion is that what potential defenses you have against a breathalyzer test depend heavily on the specific facts of your case. Not every defense will apply to every situation. This is where your Memphis criminal defense attorney, in his or her responsibility to zealously represent your interests, must do the investigative work to find out which breathalyzer-related defenses to consider, and how to integrate them into a vigorous and comprehensive defense strategy.


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Posted in arrest, breathalyzer, Criminal Defense, dui Tagged , , , , ,

Tennessee Gun Laws

What are Tennessee Gun Laws?

Tennessee has some of the most lenient gun laws in the United States, but there are several wrinkles within the law that every gun owner in the state needs to know about and be prepared to encounter with local law enforcement.

Essentially the second amendment, the right to keep and bear arms, is largely upheld throughout Tennessee, but the state government has the power to regulate any person’s wearing of arms with a view in order to prevent crime.

The prevention of crime could be interpreted in many different ways and is relatively vague, especially because no one needs a permit to purchase a handgun or needs to have any of their guns registered or licensed. The only extenuating regulation in Tennessee is that you need a permit to carry a handgun, so this is naturally where law enforcement gets strict.

It’s important to understand that in general it is illegal to carry a loaded long gun in public in Tennessee, but there are several loopholes that have come up through recent laws. As of 2014, a person can keep a loaded rifle or handgun in their vehicles without a permit, and as of July 2017 someone who is protected by a protection order can carry a handgun without a license for 60 days after the protection order is issued.

Tennessee Gun Law Infographic

We created an easy to understand infographic to help you determine the laws:

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Main Provisions

Tennessee’s gun laws are generally lenient, but just like every other state there are several restrictions that gun enthusiasts should know about.

The arms that are illegal in Tennessee include machine guns, short-barreled shotguns, silencers and explosive weapons.

For every gun purchase in Tennessee the consumer must pay $10 in order for a background to be conducted, and another interesting provision in Tennessee is that there is no waiting period for purchases like in many other states.

Just like everywhere there are certain people who can not own guns in Tennessee, and these people include convicted felons, fugitives, those of unsound mind, minors, alcoholics, drug addicts and anyone convicted of the illegal sale of alcohol.

Off-limits Places

If you have a handgun carry permit in Tennessee there are many places in which you still are not allowed to carry a firearm including a public establishment where alcohol is served, if you’re drinking. There is a zero tolerance for alcohol use and gun carrying at a maximum of 0.0% BAC in Tennessee, so it’s legal to bring a gun to a bar but you can not drink while at the bar, or have had anything to drink anywhere for that matter.

It is also illegal to carry a firearm around school zones, any room where a judicial proceeding is taking place, some parks and more interestingly any area or building that has a posted notice prohibiting weapons as long as the prohibition sign is plainly visible to the average person entering the area or property.

Carrying

As described above, carrying firearms in Tennessee is much less regulated than in many states across the country, but there are still many regulations that all handgun owners need to know about, including the phrase with the intent to go armed.

It may be sometimes difficult to prove with such lenient laws, but state prosecutors must prove that a defendant had the intent to go armed in many unlawful carrying charges. The following are successful defenses for unlawful carrying in Tennessee:

  • If the carrying was not concealed and unloaded and the ammunition for the weapon was not within an immediate vicinity of the person or weapon
  • If the carrying was by a person who is authorized and permitted to carry handguns
  • If the carrying was a person’s residence or place of business
  • If the carrying was a part of hunting or other outdoor recreation
  • If the carrying was a rifle or shotgun being used to protect livestock from predators
  • If the carrying was conducted by any kind of judge or magistrate

Where to Legally Purchase

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Although a permit is not required to buy a firearm in Tennessee there are laws requiring dealers to get licensed to be able to sell firearms and conduct the necessary background checks for each customer. Some of the more popular licensed gun stores in Tennessee include Buds Gun Shop and Range in Sevierville, The Outpost Armory in Christiana, The Tennessee Gun Country in Clarksville and the Nashville Armory in Nashville.

How to Apply for a Gun

The first thing you need to do to get a gun is to present your licensed dealer with your identification and the information of the gun you are going to purchase, and this is when the dealer will start filling out the forms for a background check.

Once the dealer completes the firearms transaction record and you sign it then the dealer will take your thumbprint for the Tennessee Bureau of Investigation to conduct the criminal history record on you. This background check costs $10.

It becomes a little more complicated to apply for a Tennessee Handgun Carry Permit, and this is a permit that requires you to fill out a Handgun Permit online, and if the applicant is permitted then the permit will last for eight years and the permittee can carry any handgun he or she owns. As like any other state the permittee must always carry their permit on them while carrying their handgun in public.

If it’s your first time applying for the eight-year permit it costs $100, or you can purchase a lifetime permit for $300 in order to avoid $50 renewal fees every eight years.

Are the Laws Working?

It’s a very sound consensus that Tennessee’s gun laws are quite lenient, and because it is so lenient there can be safe assumptions that these gun laws have lead to Tennessee being the third most dangerous state in America with 608.4 violent crimes per 100,000 people. The only two states Tennessee is behind is Alaska and Nevada, which both have significantly less people living in them.

The truth is that it’s one thing to make it easy to purchase guns in a state like Tennessee, but the recent laws that have been enacted, including the Castle Doctrine, has expanded the ability for unlicensed or non-permitted individuals to legally have handguns and other firearms in their possession in public within the privacy of their vehicles.

Of course it will always be hard for Tennessee’s prosecutor’s to prove an individual had the intent to go armed, and when gun owners have the right to carry loaded handguns and long guns in their cars without permits it’s always going to be difficult for Tennessee’s law enforcement to get guns off the streets and out of the hands of potentially violent individuals.


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What to do if you have a Warrant for your arrest

What do I do if there is a Warrant out for my arrest?

Don’t panic. Many people call our office everyday with this very situation. The first thing to remember is a warrant is an allegation, not a conviction. You are presumed innocent and your charge may be dismissed in the end. My goal here is to give you some pointers to navigate the process.

A 3 Step Process

First, hire an experienced criminal defense attorney. Your attorney can discuss the case with you, and give you more specific advice about your situation. He or she will also remind you to remain silent when speaking with the police. You have a right to remain silent and have a lawyer present at all custodial interrogations. Use your rights. Your lawyer will also be able to request a bond reduction if your bond is set too high. That is why it is important to hire your lawyer before hiring a bonding company.

Second, contact a bonding company. In Memphis, there is usually no way to avoid going into custody on an arrest warrant. This is not to be confused with a bench warrant, which I discuss here. A knowledgeable bonding company can give you a rough idea of what your bond is likely to be based on your charges, your criminal history, employment history, and residential history. They will also need to know who will be paying and/or co-signing on your bond. You will want to discuss this information with the family and friends who will be making your bond.

Finally, plan how and when you will turn yourself in. Do not take expensive clothing or personal items to the jail. Remember, all of this will go into jail property, and it is often hard for you or family members to retrieve these items. Additionally, anything you take with you, such as a wallet or phone, is subject to search. I would be sure to leave these items with friends or family. I recommend that my clients take an ID, around twenty dollars in cash, and wear comfortable cheap clothing.

When should I turn myself in?

As far as the best time to “turn yourself in,” I recommend you do it as soon as possible, preferably on a Tuesday or Wednesday morning. If you go to the jail during high-traffic (nights and weekends) it will take much longer for you to process into the jail. In other words, you will be waiting for a long time. You will want to go earlier in the week so you will have your first court date before the week is out. It usually takes 48-72 hours (not including weekends or holidays) for you to have your first court appearance after entering the jail. If you have hired a lawyer, he or she can start working on your case at that first court date. If your family and friends have had trouble making your bond, your lawyer can start to address that problem at your first court date.

Contact an Experienced Memphis Criminal Defense Attorney

I hope these tips help if you or a loved one are ever charged with a crime in Memphis or Shelby county. For further information, you can check the status of Shelby county warrants. You can also to check the court date, charges, and bond amounts of a Shelby county inmate. Lastly, our office is equipped to handle criminal matters if you need an experienced criminal defense attorney.

 


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Posted in Criminal Defense, Jail, Warrant

I Received a Bench Warrant…Now What?

What is a Bench Warrant?

Daniel Hamilton is a Memphis Criminal Defense Attorney

Many of my clients call me  about Bench Warrants. In fact, it is a frequent occurrence in Memphis, and I’ve had a lot of experience getting bench warrants recalled. If you get a Bench Warrant in Memphis, Tennessee, call Daniel Hamilton at (901) 612-2176 .

If you miss your court date, the judge issues a Bench Warrant. A Bench Warrant is basically an order for the authorities to arrest you. Once a Bench Warrant is issued, the police will begin looking for you and will place you under arrest. Once the police arrest you, the clerk will give you a new court date. Unfortunately, you may have to wait for that court date in jail.

Sometimes the new court date is for the day after the arrest. In other words, if your arrest is on Monday, you could be on Tuesday’s docket. However, if your arrest is on a Friday, the earliest docket is Monday morning. This means you will have to spend the weekend in jail. This is not guaranteed; you might be in jail longer. Make sure you are aware that if you have a Bench Warrant issued against you, your arrest is likely. You should take care of any pressing financial matters as soon as possible, especially if you are not planning to hire a lawyer.

What Should I Do Now?

Often, an attorney can help you try to get the warrant “recalled.” Rather than wait for the authorities to arrest you, you can have an attorney ask that a judge recall the Bench Warrant. The attorney can explain your situation (why you missed your court appearance) to the judge. Afterwards, the judge may choose to recall the Bench Warrant.

If you have received a Bench Warrant:

This is the Cycle you want to avoid. Make sure you keep up with Court Dates.

  1. Hire an attorney. The sooner the process starts, the better chance you have for getting a recall.
  2. Make sure your reason for missing court is legitimate. If possible, bring proof of where you were on the day of court (i.e. hospital, work, jail, etc.).
  3. Start the process early in the morning. The attorney has to get many files together in the courtroom to try to get the warrant recalled. The attorney needs time to get these things done.
  4. Finally, if you are fortunate enough to get your Bench Warrant recalled, make sure it doesn’t happen again! If patterns occur, judges might hesitate to recall a Bench Warrant. Be sure to know when your next court date is and show up on time.
Posted in Blog

10 Frequently Asked Questions about DUI in Memphis

Daniel Hamilton is a Memphis Criminal Defense Attorney

Note: This information is applicable to Tennessee DUI law as of May 10, 2015. DUI laws in Tennessee are subject to change, and they change often. This post is not offered as legal advice. It does not create an attorney-client relationship. If you are seeking a criminal defense attorney for legal advice about a DUI arrest and/or associated charges, contact Memphis Criminal Defense Attorney Daniel Hamilton directly at (901) 612-2176 .

1. If I am charged with a DUI Offense, should I hire an attorney?

Yes. You should hire a criminal defense attorney who knows the DUI laws and criminal procedure. DUI laws change often, and it is often hyper-technical. A DUI conviction carries serious consequences such as loss of driving privileges, jail time, loss of a vehicle, increased insurance rates, and often can lead to job loss. Additionally, a DUI Conviction cannot be expunged. In other words, there is only one chance to avoid a DUI conviction. You should hire an experienced DUI attorney and develop a strategy for fighting the charge.

2. What are the “tricks” to beating a DUI Charge?

There are no “tricks” to beating a DUI charge in Tennessee. There are, however, many legal opportunities that can arise based on the facts of each specific case. For example, did the officer have a valid basis for stopping the vehicle? Did the officer follow proper procedure? Did the officer need a search warrant? What does the video for the stop show? If a blood sample was drawn, was it properly handled and tested? An experienced DUI attorney will know to look at these issues and see if legal opportunities arise as a result.

3. What is a DUI in Tennessee?

As of May 10, 2015, the DUI statute in Tennessee reads as follows:
It is unlawful for any person to drive or to be in physical control of any automobile or other motor driven vehicle on any of the public roads and highways of the state, any shopping center, trailer park, apartment house complex or any other location which is generally frequented by the public at large, while:

  • Under the influence of any intoxicant, marijuana, controlled substance, controlled substance analogue, drug, substance affecting the central nervous system or combination thereof that impairs the driver’s ability to safely operate a motor vehicle by depriving the driver of the clearness of mind and control of himself which he would otherwise possess;
  • The alcohol concentration in the person’s blood or breath is eight-hundredths of one percent (0.08%) or more; or
  • With a blood alcohol concentration of four-hundredths of one percent (0.04%) and the vehicle is a commercial motor vehicle as defined at § 55-50-102.

4. Can I be convicted of DUI if someone else is driving their vehicle?

Yes. If you knowingly allow an intoxicated person to drive your vehicle, both of you could be charged with a DUI Offense in Tennessee. This is known as “DUI by Consent” or “DUI by Ownership.” If you knowingly allow an intoxicated person to drive your vehicle, both of you could be charged with a DUI Offense in Tennessee. This is known as “DUI by Consent” or “DUI by Ownership.”

5. Can I get a DUI Charge in Tennessee if the vehicle is parked and the keys are not in the ignition?

Yes. The issue here, as stated in the DUI statute, is “physical control.” There are several cases in Tennessee interpreting these words and applying them to situations where the vehicle is in park, and the driver is either unconscious or asleep in the vehicle. There are several factors that the trial court will look at to decide whether you are in “physical control” of the vehicle. If you are facing a DUI charge involving the interpretation of “physical control,”  you should hire an experienced DUI attorney.

6. Should I blow into a Breathalyzer, take a blood test, or refuse?

The decision to take or refuse a Blood, Breath, or Urine test during a DUI stop is a critical decision which can yield many different results.

It depends. This is perhaps one of the most common questions asked, and, unfortunately, there is no clear answer. There are more factors to this decision than there is room for me to discuss in this article. If you do not offer a blood, breath, and/or urine sample, then you may have violated the implied-consent statute. If so, you may lose your license, even if you are not convicted of DUI. If you do give a sample, assuming the proper procedure was followed and the alcohol content is in fact over the limit, then you may have provided the officer with the best proof of a DUI. Once convicted, you will lose your license

7. Can the officer make me take a blood-alcohol test?

Yes, but only under certain circumstances. In recent years, the Tennessee Legislature has passed several laws requiring forced blood draws. Some of these circumstances include: children in the car, prior DUI convictions, crashes with injury, etc. A common issue that arises in these cases is whether the officer was required to obtain a search warrant before drawing blood. There are recent federal and state cases addressing these issues. If you are facing a DUI charge in which there was a forced blood-alcohol test, you should contact an experienced DUI attorney.

8. Once convicted, will I lose my license?

Yes.  If you are convicted of a DUI offense or for violating the Implied-Consent statute, you will lose your license. As of May 10, 2015, the Implied-Consent statute provides in relevant part:
Any person who drives a motor vehicle in this state is deemed to have given consent to a test or tests for the purpose of determining the alcoholic content of that person’s blood, a test or tests for the purpose of determining the drug content of the person’s blood, or both tests. However, no such test or tests may be administered pursuant to this section unless conducted at the direction of a law enforcement officer having reasonable grounds to believe the person was driving while under the influence of alcohol, a drug, any other intoxicant or any combination of alcohol, drugs, or other intoxicants as prohibited by § 55-10-401, or was violating § 39-13-106, § 39-13-213(a)(2) or § 39-13-218.

9. Will I be able to drive a vehicle if I am convicted?

It depends on the conviction and circumstances of the case. In many cases, if you are convicted of DUI or violating the Implied-Consent statute, you may request a Restricted Driver’s License or an Ignition Interlock Device. If the court allows, you may be able to drive your vehicle during the suspension period.

10. What are the minimum penalties for a first-offense DUI?

The penalties can vary depending on the circumstances of a first offense, but the following are the typical minimum penalties:

  • 48 Hours in Jail
  • $350 Fine;
  • Court Costs;
  • Loss of Driving Privileges for One Year;
  • 24 Hours of Litter Pick Up;
  • Alcohol or Drug Treatment Assessment and/or Treatment Program; and
  • Alcohol Safety Class and/or Victim Impact Panel Attendance.

Again, depending on the circumstances, there can be additional penalties. It is best to discuss the facts of your case with an experienced DUI attorney.

Posted in Blog