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DUI Breath Test Results

Posted by John P. Rutkowski | May 28, 2019 | 0 Comments

Criminal law -- Driving under influence -- Evidence -- Breath test results of passenger. Where breath test results of passenger in defendant's vehicle were obtained on different machine than one on which defendant was tested and at different location and time than defendant's test, passenger's breath test results are not relevant to defendant's test results -- Even if passenger's test results were relevant, they would be inadmissible because probative value is substantially outweighed by danger of unfair prejudice, confusion of issues, and likelihood of misleading jury. Scientific evidence -- Frye test is not applicable to admissibility of defense expert's testimony as to whether defendant's use of inhaler could have effect on breath test results where state argues that expert's opinion is incorrect based on his application of science to factual circumstances of case, but does not dispute underlying scientific principles, theory, or methodology. Expert may testify as to generally accepted indicia of impairment at different blood alcohol levels but may not testify as to whether defendant was impaired or exhibited indicia of impairment.

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John P. Rutkowski

Mr. Rutkowski has been practicing law for the past twenty-five years. Prior to going to law school Mr. Rutkowski served as a deputy sheriff before retiring to attend law school. Upon graduating law school Mr. Rutkowski served as a prosecutor in Florida before going in to private practice and representing clients in three states.


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John P. Rutkowski, Attorney at Law, firm represents clients in the area of driving under the influence, boating under the influence, Criminal & Civil Traffic Offenses. Contact me today for a free telephone consultation.