Roberts Law Group, PLLC
North Carolina Criminal Defense Attorneys

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DWI attorney attempts to subpoena breath test company CEO

DWI charges are never to be taken lightly, both by those charged and by those brining the charges. If you have been charged with drunk driving based on the results of a breathalyzer machine, how much do you have a right to know about the inner workings of that machine?

It depends on who you ask. North Carolina's law enforcement agencies purchase their breathalyzer machines exclusively through a company called Intoximeters Inc., and a DWI defense lawyer of a man charged in North Carolina has twice attempted to subpoena the CEO of that company to testify as to the coding used to run the computer within the device.

The attorney's argument this past March was that a proper defense could not be provided to his client if he is uncertain as to whether the Intox EC/IR II machines are able to discern residual alcohol in the mouth from alcohol vapors evident in the lungs. His concern is that residual alcohol in the mouth could easily contribute to a false-positive .08 or above BAC level reading.

The prosecution's response to the motion was that the defense attorney should be forced to demonstrate an observed discrepancy in the breathalyzer's operation before calling the accuracy of the machine into question.

Weighing these concerns, the DWI defense attorney's motion to subpoena the Intoximeters Inc. CEO was denied by a Superior Court judge, saying he was unconvinced by the attorney's motion that such information was necessary in the defense of his client.

The case in question involved a pickup truck and a motorcycle, where the driver of the pickup allegedly hit and killed the motorcycle driver near Burlington, North Carolina this past August. The pickup truck driver allegedly registered a .16 on the Intox EC/IR II machine nearly two hours after he has apprehended by the highway patrol that night.

Source: The Times News, "Judge won't subpoena breath-test machine CEO in DWI death case" by Michael D. Abernethy, 3/26/11

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