Challenging an alcohol test: start with the evidence

Start with the distinction between selection and research

The police describe the alcohol test as a process with an initial check and, where necessary, a follow-up investigation. The small device at a roadside check does not necessarily serve the same evidentiary function as the breath analysis at the station or a blood test. Therefore, ask what result is stated on the letter and what research it comes from. Anyone who compares the first indication with a later exact number can present a difference as an error while the measurements have a different role or scale.

Make the comparison concrete. Is there a letter indication, a value in micrograms per liter of exhaled air or a blood alcohol content? At what time was this registered and by whom? The OM alcohol check overview can make the steps recognizable, but the own official report must provide the case details. Do not start with an online conversion table if it is still unclear which quantity you have in front of you. A good technical conversation first requires the same units and the same research moment. (OM overview of alcohol testing)

Which limit is legally relevant?

The Road Traffic Act has various provisions on alcohol and traffic participation, including a distinction based on the driver's circumstances. The applicable limit must be associated with the correct category and unit. Also consider the question of whether combined use of resources is appropriate. A reader who only knows the known general alcohol limit may therefore interpret his own result incorrectly. Compare the legal provision used and the specific accusation with the investigation result.

Also avoid making your own calculations from the number of glasses to an expected result as proof of inaccuracy. Recording, time and personal circumstances make such a comparison uncertain. A recall of consumption may provide relevant context for a lawyer or expert, but is not a substitute measurement. Write down what you actually know and what is estimated. This distinction helps to seriously investigate whether there is a concrete problem, without giving an uncertain evening reconstruction the status of a laboratory result.

An investigation has a sequence that must be evident from pieces

Record the suspected driving moment, the stop, the preliminary examination, the breath analysis or blood sample and the notification of the result. Link each time point to a source. A difference between one's own memory and the official report is a research question, not automatically a proven error. Also check whether a time on a device printout corresponds to starting, measuring or printing. A lawyer can request additional documents in a more targeted manner when it is clear where the timeline actually deviates.

For rules on waiting times, purchase and implementation, the applicable version of the Alcohol, Drugs and Medicines in Traffic Decree is relevant. Do not use an old manual without checking to which measurement method and period it applies. Investigate a concrete step within your own procedure. A list of all conceivable regulations does not automatically provide a useful defense. The question is which standard applies here, what the file shows about this and why any deviation has legal significance. (Decree on alcohol, drugs and medicines in traffic)

Request technical data aimed at

In case of doubt about the breath analysis, the device identification, the relevant test printout and documents about the prescribed implementation may be important. The ministerial regulation for these investigations further elaborates parts of the investigation. Ask the lawyer which documents match the specific suspicion. A general requirement to receive all technical data from each device does not automatically make it clear which anomaly is being investigated or why it may be relevant to this result.

Describe the suspicion in a short chain: an observed event, the rule or technical question associated with it and the document with which it can be verified. For example, a difference between the stated device number and the attached printout. That is more concrete than the loose statement that equipment sometimes breaks. Call in an expert when technical interpretation is necessary. The defense does not have to come up with a complete technical assessment before it can identify a specific point of investigation, but it must keep assumptions recognizable as assumptions.

The moment of counter-examination is essential

The Decree also regulates the right to counter-investigation. With a breath analysis, an immediately subsequent examination has a different meaning than a personal blood test much later. Alcohol concentrations change over time. A later self-arranged measurement cannot therefore replace the earlier result without explanation. Discuss the options when the results are announced and ask for a record of when you want to exercise your right. Do not wait until the summons is issued to investigate what was possible at the time.

Blood tests again have their own process with a saved sample, notification, payment and laboratory testing. The term counter-examination therefore does not cover exactly the same practical action everywhere. Check the letter and the applicable rules, including your own deadlines. Standard advice to always request a second test within four weeks is too harsh when it actually concerns a counter-examination after breath analysis. It is precisely the type of original research that determines how quickly and along which route the option should be used.

A concrete judgment on the communication of law

In HR January 22, 2019, ECLI:NL:HR:2019:92, it concerned the omission of the notification about counter-examination after a breath analysis. The Supreme Court confirmed that this obligation is one of the strict guarantees of the investigation in the relevant legal framework. The Public Prosecution Service's cassation appeal was rejected. The judgment shows why a procedural step can be directly relevant to the use of the measurement result, even when the number itself seems technically plausible.

The meaning is defined. The judgment does not say that every administrative error automatically has the same outcome. Nor does one's own memory prove that a statement was not made. Investigate what the official report, any other documents and the statement of those involved show about this. A serious defense specifies the concrete standard and the established default. The distinction between strict guarantees, other procedural errors and a substantive reliability problem must be assessed legally, instead of placing all irregularities under one general acquittal rule.

Medical and practical circumstances deserve control

Some drivers mention mouth spray, medication, reflux or a medical disability as a possible explanation. Write down what was actually used, when and in what quantity, as far as is known. Save relevant product or medication information. A general message that a certain condition can sometimes have an influence does not yet demonstrate an effect in your research. Let the lawyer assess whether an expert question is necessary and which research can answer that question. Don't make an internet possibility a fact in a statement.

If an investigation cannot be carried out, what was communicated and determined at the time itself is also important. Calling it a medical problem in retrospect is different from an obstacle recorded at the time with appropriate follow-up examination. This does not mean that late information is worthless; However, the timeline remains important. Discuss reliable information and existing medical documents in a targeted manner. Do not share a complete care file when one specific functional limitation is the relevant question. The defense becomes stronger from demarcation, not from a pile of unfiltered medical terms.

Fictitious example: a suspected error that turns out to be a unit difference

In a fictional example, Lotte receives an indication during the first check and later an exact result of the breath analysis. She compares that result with an online limit in per mille and concludes that the device shows far too high a number. Reading the file shows that she has put a value per liter of exhaled air next to a blood alcohol limit. That comparison does not prove a defect. The relevant question shifts to the correct standard and the actual procedure followed.

During the same lecture, the lawyer sees that Lotte does not know whether counter research has been discussed and that the research printout is missing. These are specific points for further consideration. The example does not promise a successful defense; it shows how an incorrect initial theory can obscure a real research question. A careful defense dares to drop a weak argument and then work on a better defined question. This is substantively more useful than continuing to repeat every initial doubt as a proven measurement error.

A technical file check with source documents

Create a table with four columns per question: own observation, relevant regulation, file document and missing information. This prevents a suspicion and a conclusion from disappearing in the same sentence. Let the attorney determine what additional documents are needed and how they can be obtained. Also bring documents that appear to correctly support the measurement. The legal assessment must rest on the actual file; selectively collecting only abnormal fragments can bias the analysis.

• Examination: preliminary test, breath analysis, blood test or counter-examination.
• Result: exact value, unit, identification and driver involved.
• Standard: legal provision used and applicable driver category.
• Time: driving moment, tests, administration and communication with source per time.
• Execution: relevant official reports, research printout and technical question.
• Rights: information about counter-investigations and recorded responses to them.
• Follow-up: criminal case, driving license decision, CBR process and individual terms.

A good defense combines technology with a legal consequence

Our conclusion: seriously challenging an alcohol measurement does not start with a collection of alternative explanations, but with verifiable questions about one concrete study. The technical and legal assessment must then be consistent with each other. An incorrect unit requires a different correction than an incorrect person on the form. A missing guarantee requires a different analysis than a suspicion about the operation of a device. The lawyer must be able to explain why the identified problem is relevant to the accusation.

In addition, pay attention to parallel procedures. A substantive defense in the criminal case does not automatically cancel a CBR decision or the longer retention of the driving license. Have all received letters read separately and monitor their deadlines. The main guide on confiscating a driver's license due to alcohol helps with this concurrence. Conducting an investigation also does not mean that cooperation with a lawfully requested test can be refused at one's own discretion. Anyone who is being checked now has different immediate questions than someone who has a complete investigation file reviewed afterwards. (main guide to driving license confiscation by the police due to alcohol)