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In a pending DUI charge, Columbia Municipal Judge Steedley Bogan issued an order Friday saying the breath test results could not be used as evidence when the DUI case goes to trial. The breath test was suppressed 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. However, machine instructions advise against that, and 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.
Joe McCulloch, the DUI defense attorney who represents the Defendant, said the judge’s order could have an effect on other DUI cases. The Judge’s opinion is not binding on other jurisdictions, but it can and certainly will be used as persuasive authority in DUI cases across South Carolina.
In South Carolina, the Datamaster DMT is the only breath test machine law enforcement is allowed to use in DUI investigations. 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.
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.”