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802 Coleman Blvd., Suite 200, Mt. Pleasant, South Carolina 29464

Breath test thrown out in Columbia DUI


COLUMBIA, SC — A Columbia police officer may have blown a DUI case when he failed to follow procedure when giving instructions on a breath test.

Columbia Municipal Judge Steedley Bogan issued an order Friday saying the breath test results could not be used as evidence when the case goes to trial, because the officer told the suspect to “blow hard” when he was giving instructions on the test.

The officer issued the order several times during the two-minute sampling period. But machine instructions advise against that, and some experts say uneven breaths can alter the results.

An instructional video shown during the hearing specifically advises against an officer ordering someone to “blow hard,” Bogan’s order said.

“There simply is no way to avoid the unavoidable conclusion that instructing a subject to ‘blow hard’ is not proper procedure,” he wrote.

Joseph McCulloch, the defense attorney who represents the DUI suspect, said the judge’s order could have an effect on other DUI cases.

A city judge’s opinion is not binding on other jurisdictions, McCulloch said, but it could make other defense attorneys take a look at how their clients’ DUI breath tests were given.

“The importance of this opinion is that it broadcasts to law enforcement that there is a significant problem with a procedure that officers may be employing,” McCulloch said. “I’m hoping law enforcement and prosecutors across the state will take note of this.”

In South Carolina, Datamaster is the only breath test machine law enforcement is allowed to use, said Lt. Dale Smith, traffic safety program manager at the S.C. Criminal Justice Academy. Under state law, .08 is evidence of intoxication.

Infrared lights in the machine absorb air as it comes out of a suspect’s mouth. The light is absorbed differently by various substances, including the ethanol found in alcoholic beverages, Smith said.

The most accurate readings come from deep lung air. At the academy, officers are taught to instruct suspects to take a breath and blow as long as they can into the machine, he said.

Smith said he did not think an order to “blow hard” would skew the results.

During a hearing in which McCulloch challenged the police officer’s techniques, he used testimony from the accused, a woman, as well as an expert witness and the Datamaster training manual to support his arguments. The expert witness testified that results can be altered by the breathing pattern.

“The machine expects to receive a strong, continuous exhalation,” he said. “Some believe the harder you blow, the higher the results.”

After Bogan’s order was released, the city’s legal staff sent notice to the Columbia Police Department’s command staff, said Jennifer Timmons, a police spokeswoman. That notice was distributed throughout the department.

But Timmons said she was not at liberty to release the communication, because it originated with the city’s legal department. City Attorney Ken Gaines and David Fernandez, the city prosecutor on the case, did not return phone calls.

For now, the Columbia Police Department does not have plans to retrain its officers, Chief Randy Scott said.

McCulloch said he suspects Columbia is not the only police department where officers do not follow the proper procedures in administering the test.

“It certainly is something I’ve seen in a number of cases,” he said.

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