The ongoing COVID-19 virus outbreak has deeply disrupted virtually every aspect of public life with seemingly no end in sight. DUI Enforcement is no exception. Police rely heavily on the breathalyzer to identify drunk drivers, but serious questions have arisen about the safety of breath-based tests during the COVID outbreak.
Police still have an obligation to enforce drunk and drugged driving laws and continue to do so.
Oklahoma reported a whopping 300% increase in alcohol sales during the month of April 2020 alone, which is not unlike increases reported elsewhere during the pandemic. With alcohol use on the rise, DUI stops will increase as well. But during COVID, DUI stops aren’t as simple as they used to be.
“One of the disadvantages we have in law enforcement – and with all first responders – is that we can’t social distance,” one frustrated Tulsa Police lieutenant told the local media earlier this year. “We don’t have the option to say, ‘Hey, we are going to arrest you, but can we do it from six feet away?’”
During a traffic stop, an officer that is unaware he or she is a carrier could transmit the virus to you, or you could transmit the virus to the officer. An Oklahoma Highway Patrol trooper lost his life to the virus in September. The risk of direct viral transmission in a traffic stop is not negligible, but is offset by other safety measures like wearing a mask.
Public health officials are urging us all to step up the use of hand sanitizers to limit the spread of the virus. But that has revealed a new problem for drivers taking a breathalyzer test. Not one but two research studies have demonstrated that hand sanitizers containing alcohol can unintentionally trigger high breathalyzer readings.
One study showed this was particularly acute where the officer mishandled the device. The second study showed that inaccurate readings could reach as high as a .15 blood alcohol concentration. That’s enough to lead to a charge of aggravated DUI in Oklahoma.
An additional concern is that some breathalyzer models widely used by police can accidentally store pathogens inside of them.
As an example, critics have pointed to the Alco-Sensor FST, a breathalyzer approved for use in Canada and most states. According to one attorney in Vancouver, Canada, even if the straw you blow into is sterilized, the device can still collect pathogens on and within its components. He adds that recent research of COVID-19 shows it can remain a threat on plastic surfaces for as long as three days.
“The breath is vented under pressure up above the device near the officer and with the aerosolized matter landing back on the device and the officer’s hand,” Paul Doroshenko says in a post demonstrating how the devices work. “ … If a subject sucks on the mouthpiece, which is a common occurrence as people try to inhale for the purpose of blowing, they may suck in material deposited there by a previous subject.”
A major determining factor in your case could simply be where you live.
Police around the State of Oklahoma have reported changes to how they’re conducting all kinds of traffic stops. Authorities in both Tulsa and Broken Arrow are responding to fewer traffic accidents in person, and may be less likely to physically arrest you for a DUI. In lieu of arrest, drivers receive a ticket and summons to appear in court.
If you refuse a police request to take a breathalyzer, The officer sends notice of your refusal to the Oklahoma Department of Public Safety. The State then automatically begins a civil procedure to revoke your license independent of any criminal charges you might face. That starts a 30-day countdown in which you or your attorney must intervene to keep your driving privileges from being revoked.
Courts everywhere are seeking to follow guidelines from the Center for Disease Control and limit in-person proceedings. A typical DUI case might take just a few months to resolve in court, but the pandemic has caused significant delays across the board. This often means that the resolution of your case is prolonged, but it could just as easily mean that prosecutors feel pressured to resolve your case faster and accept a favorable plea in an effort to ease the Court’s backlog.
Despite the challenges, police departments in Oklahoma are still committed to enforcing drunk driving laws. Police will use the tools available to them to enforce those laws, even if those tools have to be bent to the realities of the pandemic. For those charged with a DUI, it remains critically important to hire an attorney as soon as possible to ensure the best outcome.
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