On January 23, 2013 a SC judge ruled that the instruction to “blow hard” when administering a DUI breath test invalidated the results and ruled the results were inadmissible at trial. “There is simply no way to avoid the unavoidable conclusion that instructing a subject to “blow hard” is not a proper procedure,” reasoned the judge.
The issue in question was whether the admissibility requirement of “proper procedure in the testing process,” as required by State v. Parker, was met. The video recorded DUI breath test procedure showed the officer instructing the accused several times to “blow hard” during the two-minute sampling period.
DUI Breath Test – Defense evidence
During the motion to suppress the defense presented the following:
- The DUI breath test report;
- The video recored breath test procedure instruction “Blow Hard.”
- Datatmaster owner guide;
- “Proper procedure” directives of the The SLED/Criminal Justice Academy sanctioned Recertification Materials;
- BAC Datamaster recirtification Training Program and video
- Defense expert, Dr. William Brewer, PhD (Physical chemistry)(former SLED toxicologist);
- Scientific journal.
It was determined that SLED has no regulation or policy addressing the actual proper/improper method of giving a breath sample, except the owner manual and recertification video advising a subject to “blow hard.” The defense expert testified that instructing a subject to “blow hard” was not the proper procedure and no evidence was made by the City as to the proper procedure and practice of the blow hard instruction was improper.
Having determined that the proper breath test test was not used, the judge found the City failed to establish a proper foundation under State v. Parker and therefore the breath test must be suppressed and is inadmissible.
Dale Savage is a Charleston DUI Lawyer and owner of the Dale Savage Law Firm a South Carolina criminal defense and personal injury practice.