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Will Police Stop Releasing BAC Results?

Posted by Lynn Gorelick | Jun 01, 2015 | 0 Comments

Most news stories of a driver getting arrested on suspicion of driving under the influence are accompanied by a small number. That number is the blood alcohol concentration (BAC), which can be the basis for a per se DUI violation if a driver tests 0.08% or higher. Now, in Vermont, police and prosecutors are at odds over making that number public.

David J. Cahill, the executive director of the Vermont State's Attorneys and Sheriffs, on behalf of 14 state's attorneys, is urging state police to no longer make a driver's BAC test results public. The Vermont public safety commissioner, Keith Flynn stands opposed, believing that the state constitution overrides the prosecutor's wishes.

In a one-page letter, Cahill wrote that police should “immediately cease the extrajudicial dissemination of numerical alcohol concentration tests pertaining to persons arrested for Driving Under the Influence of Alcohol. Our request extends to both preliminary and evidentiary alcohol concentration test results.” Preliminary BAC tests include field testing breathalyzer-type devices, or a PAS machine.

Flynn, on the other hand, stands on the side of transparency. “We can't get into a position like Baltimore and Ferguson,” said Flynn, “where the police are being questioned about transparency. We have nothing to hide.”

However, Cahill notes that while transparency is “a laudable objective,” his office opposes disseminating BAC test results. The reason given is that BAC test numbers could unfairly cause prejudice against the defendant. Instead, they should be released once the defendant has appeared in court on the charges.

However, like California, test results may also be available through the administrative per se hearings through the Department of Motor Vehicles. The commissioner of Vermont's DMV sides with Flynn, believing that state law requires his department to release BAC test results at the time of arrest.

Cahill's letter was not addressed to the DMV, nor to municipal police departments, county sheriffs' offices or state liquor investigators, who also all release breath test results. This has resulted in some confusion between different parts of the state, with some offices releasing PAS tests, while other release police station BAC test results.

Vermont governor Peter Shumlin says he also favors the transparency that comes with releasing preliminary breath tests, or Alco-Sensor tests. The PAS tests are voluntary in Vermont, just as they are in California, and are used in an investigative capacity rather than as evidence. That is one reason prosecutors do not want those results released, because they are inadmissible in court. Flynn, himself a former prosecutor, does not plan to give into Cahill's demands. “The public interest outweighs the position that they are putting forward,” said Flynn.

If you submitted a sample for a PAS breath test, or were only tested at the police station, you do not have to plead guilty. Just because you were arrested does not mean you have to be convicted. At the Gorelick Law Offices, attorney Lynn Gorelick has dedicated her legal career to defending people facing drunk driving charges in the East Bay. With more than 30 years of DUI and criminal defense experience, Lynn Gorelick understands the local DUI laws, and will fight for you. If you are facing a DUI, contact the local East Bay DUI defense attorney who understands how to get DUI charges reduced or dismissed.

About the Author

Lynn Gorelick

Lynn Gorelick has been an attorney for over 38 years. She is the Attorney Lynn Gorelick is the Immediate Past President of the California DUI Lawyers Association and a Faculty and Sustaining member of the National College of DUI Defense. Lynn is a Specialist Member of the California DUI Lawyers Association and lectures frequently to other attorneys regarding DUI and DMV issues.


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