Blogs from June, 2018

When you’re arrested and charged with driving under the influence of drugs or alcohol, you are required to submit to a chemical test to determine your intoxication level. Naturally, as someone who is expecting a fair trial, you would expect the evidence obtained this way to have integrity and be free from defects or outside factors that could influence the results against you. This brings up a fairly interesting question: are these tests actually accurate?

The answer may surprise you: you may not realize just how wildly inaccurate a chemical test could be, particularly if testing procedures and protocols aren’t followed correctly. On this blog, our Reno DUI lawyer will discuss a few of the ways in which your test could be flawed and your results inaccurate, thus calling into question the legitimacy of the evidence.

Three Types of Chemical Tests

There are three types of chemical tests that authorities can use for the purposes of determining your intoxication level: blood, breath, and urine. For drug-related DUI charges, only blood and urine tests can be used since breathalyzers aren’t capable of picking up traces of intoxicating compounds, like THC from marijuana. Instead, breathalyzers can only be used for alcohol-related DUI charges.

Inherently, there are some issues with each type of test that could jeopardize its accuracy. Let’s look at them a little bit further.

Blood Tests

Blood tests are often not the method of testing that law enforcement prefer to use. For starters, it’s invasive, and requires a lot of care and caution in order to properly test someone. If someone is acting intoxicated, properly administering a blood test can be immensely difficult. Assuming the blood samples are drawn properly, the samples must be handled carefully and sent to a laboratory for testing. During transport, the samples must be kept at a constant temperature, must avoid being heavily shaken or disturbed, and plenty of other requirements must be met as well. In short: a lot can go wrong.

Blood tests also usually take anywhere from a few days to a week or so to get results back, by which time you’ll have needed to get a considerable amount of preparation done for your case. As such, both sides usually agree this isn’t the ideal way of testing for intoxication.

Urine Tests

Urine tests are disliked for many of the same reasons that blood tests aren’t preferred: they’re invasive, require laboratory testing, and in many cases highly unsanitary, requiring careful handling. While these tests are often preferred by people who wish to avoid being stuck with a needle, they are also notoriously less accurate than blood tests as well, particularly at determining the current amount of a substance in the body. Even if someone was previously intoxicated and has waited until they “sobered up” before driving, their urine test could still contain immense amounts of alcohol because their liver has cleaned it up and your body is waiting to dispose of it.

Urine tests may also show illegal amounts of drug intoxicants for as much as several days or even weeks after the drug use occurred and the intoxication has passed. Both of these factors could contribute to evidence against someone being inconclusive.

Breath Tests

Breath tests are the preferred method of chemical testing for alcohol-induced intoxication. These tests are non-invasive, quick to conduct, inexpensive, simple, and usually yield pretty accurate results as long as standard protocols are followed.

However, as with the other two tests, they’re also not perfect. Breath tests could be swayed heavily by mouth alcohol, which is traces of alcohol still in your mouth that have not yet been absorbed by your body (and thus, can’t contribute to your intoxication levels). Mouth alcohol can cause someone who is not intoxicated to blow a breathalyzer test that’s over the legal limit, even though they’ve never committed a crime.

Furthermore, breathalyzer machines need to be properly calibrated to work correctly and yield accurate results, and improper maintenance or poor calibration can throw all of the evidence collected against you into question, possibly even resulting in it being thrown out.

Causing physical harm to someone or causing them to feel threatened that they are about to experience physical harm make up the Nevada crimes of battery and assault, respectively. When someone finds themselves arrested for assault after a drunken night on the town or a disagreement that go out of hand, one of the first questions we often receive as a Reno criminal defense firm is “I never meant to hurt the other person. Did I actually do anything wrong?” This is a fairly common question we receive, and it’s one that’s got a pretty straightforward answer as well.

Here’s the answer that often surprises people: if you inadvertently injure someone while attempting to make them feel threatened, you can be charged with assault. Even if you never actually intended to cause an injury to someone, the law that defines assault does not require that any physical harm occur for the crime to be committed—the threat of harm alone is enough to warrant charges.

The Crimes of Assault and Battery

Assault and battery are actually separate charges. While most people know of the term “assault and battery” from watching crime dramas on television, few people recognize that they’re actually two entirely different acts. You can be charged with assault without battery, and likewise battery without assault.

Battery is the act of intentionally using “unlawful force” on someone else’s body for the purposes of causing them harm. For example, someone who gets into a bar fight with another patron over a tab dispute could be charged with battery for connecting a punch to the other patron’s face.

Assault with Intent to Injure

Assault doesn’t necessarily require that physical harm or “unlawful force” is exerted. Instead, the crime of assault is simply intentionally threatening another person or making them feel as though they are about to be harmed physically. The victim must be aware that the threat is occurring.

Assault Without Intent to Injure

Now that we know the difference, we can answer the question more accurately.

Let’s go back to the bar fight example. Say Patron A has had a pretty tough week, and gets into a disagreement when he hears Patron B trying to sneak extra drinks for their group onto his tab. Having already had enough, Patron A goes over to Patron B and tells them to knock it off and pay for their own drinks. Patron B, trying to call his bluff, tells him to sit down and shut up. This sends Patron A over the edge, causing him to lash out quickly clench a fist, and hold it up to Patron B’s face, all while issuing violent threats of harm. When the police arrive to the scene, they arrest Patron A for assault.

Why? Simple: while Patron A never actually touched Patron B, he issued verbal threats and made motions that were intended to cause fear and make Patron B feel as though they were about to be physically harmed. Even though Patron A never meant to hurt Patron B and restrained his conduct, Patron A has still committed the crime of assault, and could face criminal charges for it.

Now, had Patron A really gone overboard and actually thrown a punch at Patron B, then his crime may have been escalated to include one charge of assault and one charge of battery, since he intentionally used “unlawful force” on someone else’s body.

Assault With a Deadly Weapon

The charge of “assault with a deadly weapon” is the use of any sort of weapon, such a knife, firearm, blunt instrument, or anything else that could cause harm, to threaten another individual with harm. Even if there was no intent to injure the other party, the mere act of using this weapon to make the other party feel threatened is enough to add in this aggravating factor, which escalates your charges to a category B felony and could land you behind bars from anywhere between one to six years.