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Preservation of Breath Sample Not Required

Preservation of the Breath Sample

There is much argument about the reliability of the Intoxilyzer as well as other Breathalyzers. These machines attempt to gauge the BAC in a persons' blood. The problem is, they are measuring air, not blood. So, shouldn't it be even more important to preserve that air sample, so the defendant could run his own independent testing on it when they are charged with DUI?

According to the Kansas Court of Appeals, it's not necessary for law enforcement to preserve a sample for the suspect to do independent testing. In State v. Johnson 43 Kan.App.2d 815, 233 P.3d 290 (5/28/10), the defendant filed a motion to suppress. However, the court found that results from a single breath test are scientifically reliable and, therefore, should be admitted into evidence. The court relied on the past precedence of Meehan v. KDOR, 25 Kan.App.2d 183, 192-94, 959 P.2d 940, rev. denied 365 Kan. 885 (1998).

As a criminal defense lawyer, I understand the importance of due process. Many lawyers would argue that not being able to independently test the breath violates due process rights of those charged with drunk driving.