Child Porn Sentences on a Federal Level

As this occurs, the United States Sentencing Commission must keep up by increasing the advisory federal sentencing guidelines for these crimes. With both agencies working together, sentences for child pornography have increased by 500 percent over the course of a fifteen-year timeframe.

In some instances, sentences for first-time offenders may be decades behind prison bars. These convicted offenders may never have touched or abused children previously, and with some of these individuals, there is little chance they would. The guidelines for child pornography sentences are based on specific factors and situations that are not necessarily a reflection of the intent or severity of the crime committed.

Developing Guidelines

Guidelines used for child pornography cases were originally adopted as a political measure in 1991 when the United States Sentencing Commission assigned crimes of possession of child pornography to a level ten. This level ten carries a sentence of six to twelve months in prison. The United States Sentencing Commission reported that Congress instructed it to first raise the level to thirteen without asking for their expertise in the matter. This level holds a sentencing of twelve to eighteen months in prison. Later, Congress again had the agency raise the level to fifteen with a possible sentence of eighteen to 24 months behind bars. Against the advice and experience of the United States Sentencing Commission, Congress again had it raise the offense level in 2004 to what it has been since: a level of eighteen. This current level has a sentencing of 27 to 33 months in prison for possession of child pornography without any other crimes having been committed.

Guidelines and Levels

When the guidelines are in place, this is only the initial point of developing a sentence for a convicted offender. Once the basic levels have been determined, other factors that affect sentencing are added to the time or fines issued to the convicted individual. Many factors added to these sentences have been provided to the United States Sentencing Commission through Congress without any regard as to the agency’s knowledge in these matters. With the added criteria to sentencing, regularly, a convicted individual with only one count of possession of child pornography may accrue a level of 27 or higher. This level has a potential sentencing of 70 to 87 months behind bars. When the increase of levels started from ten to eighteen through Congress based on their directives, it was done so because of a political agenda. No use of the United States Sentencing Commission’s data or national expertise was utilized for these numbers.

How this Affects Others

Because of the seriousness of the crimes dealing with children, many believe that these sentences are appropriate and should remain intact. However, when family or friends discover their friend or loved one faces these charges, they do not feel these guidelines are proper. It is their hope that justice will prevail in a fair manner. They hold that the guidelines used for these cases are the same as for other cases where the possible sentencing is based on expert examination of the claim, study and the content of the case instead of any specific political agenda forced upon the charges. This is how they feel their loved one or friend is treated fairly with a sufficient and proper sentencing without any heightened amount of time added. However, courts are often influenced by victims and the prosecution who want harsher punishments because the crime deals with children.

Distribute illegal content such as child pornography

While many feel safe cruising the internet while believing they are anonymous, many are unaware of just how watched some are when browsing online. Not all internet crimes may be discovered, but those that are may be harshly penalized when convicted.

Accusations Cause Difficulty

Accusations of sex crimes may cause a loss of reputation, social damage beyond repair, ruination of relationships and other related problems. The very accusation may be the foundation for charges in some states, potentially leading to conviction. Accusations of these severe crimes often cause others to lose faith in the accused individual. Some relationships may fail because allegations are believed even though the defendant has not even been convicted. Those in the community the alleged criminal resides in may treat him or her with prejudice based on the accusations alone.

Sex Crimes are an Illegal Activity

Various activities online are illegal. To be an internet sex crime, any activity conducted through use or aided by the internet must be involved. This may include possession or distribution of child images or video of a sexual subject or manner, attempting to entice or encourage a minor’s interactions in a chat room or sending provocative photos or video to a minor. Requesting these may incur additional charges of possession of child pornography as well. These crimes are often complicated with charges at both a state and federal level.

Crimes of Child Pornography

When sex crimes are committed online, these often include charges involving the collection of visual depictions of minors or those that have graphic images of sexual contact or nakedness. Downloading or distributing these images across state lines causes these offenses to be upgraded to the federal level. This may be through server exchanges, transport via routers or even movement with conventional vehicles.

Penalties for these crimes are often harsh with potential additional punishments added on based on the factors of the crime involved. The amount of photos, depictions, age and various similar factors are included in sentencing determination.

Online Inducement and Requests

Luring minors online through enticements with the intent of committing the crime of sexual abuse is a second-degree crime in many states. The minor must be under the legal age of the state, which is usually eighteen. Often prosecution must prove that the perpetrator was soliciting someone under the age of eighteen, some type of attempt was made to entice the youth and intention of committing a crime with the minor was in place. This also involves the use of the internet in the crime.

Penalties through conviction may lead to a prison stay of at least five years. Sex offender registration is a likely possibility if the state requires this. When defending against these charges, the intent behind actions must be proven.

Sex Offender Registration

As with most sex crimes, sex offender registration is required in most states. Any sex offender must register based on the stipulations in the state the crime was committed in and submit various identifying information for the registration. Depending upon the state and crime, registration may be for years or for life. Additionally, sex offenders are often required to register their residence when they move into a new state.

Megan’s Law

There are variations of Megan’s Law in every state, but guidelines may differ depending upon certain factors. These guidelines are to administer how the sex offender’s information is permitted for viewing by public individuals. Some states have registration through a database with public access, but others have internet registration accessible only to a few. Notifications of sex offenders are often made available to the community he or she will become a part of.

Some states such as New Jersey have regulations on how sex offenders must adhere. This may require those registered to avoid specific towns or areas that ban those with registration. This may additionally ban special areas where sex offenders with a history of crimes against children might run into such young people.

Finding a Lawyer for Internet Sex Crimes

If accused, it is best to find a lawyer that has knowledge about sex crimes. With internet involvement, the lawyer should be well-versed with how to access and use the internet and how these instances apply to these cases.

Claims in a Sex Crime as Evidence

In addition to the right to a trial by jury of his or her peers, the defendant has the right to bring up evidence of the victim’s previous claims that proved to be false. This may show that the accused has been the target of these claims before or that the victim wrongfully accused someone on a previous occasion. This information may help further proof behind his or her innocence in charges. Sometimes the alleged victim is acting out of spite or with a vengeful spirit to punish another person for various reasons. In some cases, the person claiming to be the victim wants money to dismiss charges. In other cases, the victim may be confused or suffer from a mental illness that causes him or her to believe things happened that did not happen in reality.

In some sex crimes cases, the person that must go through trial as a defendant is actually the victim of the case. And in some cases, the person scrutinized throughout the proceedings is the person that came forward with a sex crime as a victim. This causes those affected by these offenses to not want to reveal a crime occurred.

Cases of Revenge in Sex Crimes

When the motivation behind the alleged victim’s claim is revenge, jealousy, spite or an emotional trigger, the defendant must work hard at protecting his or her rights in relation to false accusations. In some situations, the affected person contacts the defendant with an offer to dismiss charges. However, in many of these offers, the deal requires monetary exchanges.

Revenge may cause claims of multiple crimes being committed in the same case. These may include rape, assault, battery and potentially robbery. The victim may claim consensual sex was actually a crime of rape, and the charges may increase if the use of deadly weapons and physical harm were part of the allegations. These accusations are damaging and may cause a lengthy case with possible multiple appeals if necessary. Those seeking retribution through revenge often play their part well to ensure the defending party is punished.

Rejection of Past Claims

When the judge presiding over a case rejects the introduction of evidence that reveals how past claims were false, this cripples the defense when attempting to prove the truth. In some instances, the alleged victim may have been a professional prostitute or someone that traded services for monetary exchanges. Any instances of claims of a sex crime in these circumstances are often false, as the exchange of money for services is an assumption of consent. While other crimes of assault and battery may transpire, these are not usually committed by those seeking only sexual gratification. However, if the past false claims cannot be introduced, the defense must restructure the strategy of the trial.

When the past false claims are rejected from being part of the trial, an appeal may be filed as the defendant may claim his or her right to defend himself or herself properly was removed. This may be the only step to overturn conviction of these false claims.

Due Process in Sex Crimes

The right to a complete defense is afforded to all United States citizens no matter what type of crime is alleged to have been committed or who the defending party is. The Due Process Clause of the Fourteenth Amendment and the Confrontational Clause of the Sixth Amendment in the United States Constitution allow for a complete defense with all relevant and related material being allowed introduction in the trial. This may lead to a new trial if the previous one rejected evidence of false claims by an alleged victim. Through excluding certain evidence, some rights might be violated.

Find predators sharing child porn media

Many individuals believe they are anonymous when creating profiles online through various sites. However, some of these sites are monitored by law enforcement for potential conviction of criminal activities. Possession, sharing, transmitting and creating images or video of children in sexual activity are all crimes with harsh punishments when conviction occurs. Included are semi to complete nudity of these children in visual depictions whether these are drawn, painted or photographed.

What Is a Peer-to-Peer Network?

When one or more computers connect online through a website, network connection or software, a peer-to-peer connection can be made. These are connections directly from one or more computers to one or more computers or servers. When connected in this way, downloading or uploading software or other media is possible in quick and swift exchanges. For media that is only available on a specific person’s computer or through a server only available to particular people or members, this is the best way to obtain this information. In some instances, membership with vast details is needed. In other situations, membership is purchased monthly or yearly.

Fighting Child Porn Crimes Internationally

Law enforcement agencies combat these offenses on an international level. Additionally, federal and state level agencies work in cooperation with international organizations in order to attempt to reduce and eliminate the threat of child offenders throughout the United States. Each charge of child pornography may have a different penalty, and each level of charges may increase the harshness of the punishments. When the distinction between possession and distribution of pornography becomes complicated determining what crime is committed with relevant penalties also become complex. The very act of possessing pornography involving children is punished heavily, but distribution charges are much more severe.

Crimes of Child Pornography

Possession of these depictions often has a harsh punishment with years in prison and potentially fines along with sex offender registration. This includes the downloading, creating, and possession of images or video files.

Distribution is usually determined as the sharing or intended sharing of pornographic child photos or video from one person to another. This may be through online contact, copying and sharing photos or video in person or sharing content through a peer-to-peer network. Sharing through a network may be determined as both distribution and delivery of content with at least one other person. Though access online and sharing media in this way is considered a passive means, it has been accepted through court trials previously, resulting in the conviction of defendants who used these means to distribute pornographic images. Because of this, peer-to-peer investigations for child porn content have become a common practice by law enforcement officers. Catching offenders in this way is invaluable in some cases.

Unintentional Sharing of Content

P2P network access allows an individual to share files and folders set up through preferences chosen by the member with the software or website membership. When these settings are left open, anonymous sharing may be possible. In some instances, members of these websites may have accidentally left files or folders open to sharing when they did not intend to. Even if nothing was downloaded, this may lead police officers to apprehend the individuals through unintentional behavior. In these situations, a criminal defense lawyer may try to argue that the defendant lacked the necessary mens rea to be convicted of the crime since there was no intent.

Catching Offenders through Software

Law enforcement agencies have various software programs that may determine IP addresses or other information about a user. When an IP address is determined, the location of the offender may be pinpointed. This allows law enforcement agents to cite probable cause in order to have a search warrant created to search the home of the identified offender. The computer used in the home along with the entire house is investigated and examined thoroughly. Charges may depend upon the intentional distribution of child pornography for distribution charges. However, possession charges may still be issued in these cases.

The information about sex offenders to the public

The registration causes complications for the lives of those convicted of these crimes subjected to registering in the state they reside in, and finding jobs or housing may become exceedingly difficult. These individuals are usually singled out for harassment and in some instances physical abuse.

When law enforcement agents have the same views as the community in shunning, harassing or harming these convicted registrants, their lives are no longer private or filled with daily norms. Reintegration into society is not usually an option for those registered in states with these requirements. Communities often band together to restrict what convicted sex offenders are able to do. The convictions themselves cause many jobs to be limited for employment. Many housing options are removed due to the registration and conviction of crimes.

Sex Offender Registration Consequences

Evidence supporting the prevention of additional sex offender crimes has not supported the use of registration as a deterrent. Though the idea may have been implemented through good intentions, the use of registration may cause worse issues than it is supposed to fix. Many law enforcement agents spend more time finding convicted offenders who have not registered or are not in compliance with registration processes than in investigating sex crimes actually committed by these individuals.

However, offenders that have registered and are in compliance may still commit secondary or additional sexual offenses. While registration causes severe complications in a community, with a job and housing, it does not prevent a crime from occurring. Limitations of sex offender registration do not restrict individuals from social interactions with others. Contact or proximity to places that children reside may be limited, but some offenders are able to work around this. Additional crimes with sex offenses may transpire to quell the unnatural craving some of these individuals possess. These may include kidnapping, assault, battery and other related crimes.

Restrictions

Additional laws have been implemented to restrict the rights of those that have registered in an unfair manner. This may limit proximity to and distance from schools, churches, parks and other such places where any child may reside or congregate. This forces registered individuals to move to more rural areas or to live on or in properties that are state-owned or correctional facility properties. In some instances, these laws may cause the homelessness of various registrants. In some states, this may force someone to no longer have the ability to return home due to the closeness of potential or previous victims.

Punishment that Continues

Because of how registration affects many convicted individuals, after a prison term has been completed, these registrations seem to cause further and continued punishment. Some states have additional clauses or laws required by registrants such as New York. In this state, there is a civil commitment statute. This may be used to place convicted sex offenders in a treatment facility for additional and further rehabilitation. This may be required even if the offender is not in prison any longer.

Confinement in these buildings may be indefinite, until a determination of recovery has been examined or some other set date is outlined by facility officials. After expulsion from these places, compliance to all sex offender registration guidelines must be adhered to.

Some instances they send them to someone over eighteen

Sexting has been outlawed when dealing with anyone under eighteen. The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003 has been used to criminalize sexting with anyone under eighteen in sending, receiving, distributing, copying and performing other related activities to child pornography. When pictures of naked children under the age of eighteen are sent to anyone including anyone of the same age, a crime may have occurred through federal law.

Sexting: A Growing Issue

Around the country, various teens have started sending these naked pictures of themselves to others. In many situations, these are sent to significant others. Some teens date individuals that are over eighteen and send these pictures not knowing they are breaking federal law and possibly various laws in the state they reside. In many cases, the pictures they send are forwarded to others and at the point the picture is sent, there is no way to stop it from being shared with anyone in the world. Some of the pictures are used for dark purposes, some to humiliate, some as a joke and others for various reasons for or against the person that sent them.

As technology grows, the practice of sending naked photos or video has become an issue laws needed to catch up to. With no time needed to develop pictures, these teens may send them immediately after they are taken. The sending of provocative photos is growing as more phones are being equipped with detailed and technologically advanced cameras.
One survey explained that over 20 percent of teen females and over 15 percent of teen males have admitted to sending or receiving semi-nude or completely nude photos or video media. The survey was commissioned by the National Campaign to Prevent Teen and Unplanned Pregnancy to determine how sexting affects those in higher categories of having sex before marriage. Unfortunately, the act of sending, receiving or posting these photos is illegal no matter if the laws are known to these teens.

Sexting and Legal Issues

State laws throughout the United States and federal laws are often broken when sexting messages are exchanged. Because electronic transmissions are deemed interstate commerce, the federal level has jurisdiction over these crimes as well as any state laws applicable to the case. Distribution and possession of child pornography is applied to these cases with all potential penalties. With federal law broken in this manner, a sentence of five to up to fifteen years in federal prison is a possible outcome of these actions. Extensive fines and other penalties such as sex offender registration are all possible as well. For first time offenders and when age is a factor, some sentences may be decreased regarding these crimes. However, harshness and severity are determined and applied to cases which may have negative impacts on sentencing guidelines.

Protecting Children

Some states have deemed a child of sixteen to be an adult for the purposes of evaluating whether sexting is criminalized. When this is the case and messages with sexually explicit material are sent or received with these individuals and others who are younger, the laws created to protect them are not being used to invoke potential sentences of prison time. Conviction of law violations may result in life-long penalties depending upon the state and federal charges issued.

When a crime of sexual exploitation of a minor has been charged to someone involved in sexting in a state that has such laws, sex offender registration may be required. This registration may last the entirety of the person’s life, or it may only last a few years. However, any additional convictions of similar crimes usually cause the registration to become permanent along with additional penalties.

Legal Standpoint

The problem of sexting involves teenage individuals and other teenagers or adults. When sexually graphic images or video are exchanged, the material may be used by a sexual predator. Through this activity, the visual depictions may be used to lure others. Further crimes may be committed because these images or video were shared outside the confines the person originally intended. Obtaining a lawyer and building a case to protect those sharing and exchanging this material is vital. A criminal defense lawyer who practices law for state-side crimes and federal crimes may be needed to mitigate penalties and to build a defense.

Sex Offenses May Ruin Lives

When citizens in the community feel the person accused is actually guilty of these crimes, they may take it into their own hands to punish these individuals through physical or other means. Harassment and physical injury may transpire through these activities. Even if an arrest was not made, some ignorant of this information may subject the previously accused to various types of abuse.

Social Adverse Effects of Accusations

Sex crimes convictions come with various penalties and punishments that may last the entire life of the offender. However, the social effects of accusations may be an adverse outcome caused through communities’ and individuals’ opinions and behaviors after learning of these allegations. It does not matter if the allegations prove to be true in many instances. The very accusations cause a stigma against the person against whom the claims are brought.

Other issues of losing a job may occur through these accusations. Often employers do not feel that those accused of sex crimes in any form are fit for their company. This also usually extends to housing options of renting or owning a property. A look for references may turn up previous allegations of sex offenses against others. This may lead landlords or property management to decide against approving a rental agreement or ownership.

Arrest and Conviction

Arrests for sex offenses cover a wide range of crimes that may have been committed. Allegations are often enough to initiate an investigation into the life of the accused person. It is at this point a criminal defense lawyer should be obtained. Often many accusations are due to family disputes, messy divorce proceedings, relationship issues and custody battles. In many of these cases, the accusations are false and may be proven as such. However, in some instances, an innocent person may be convicted through testimony or false evidence that is convincing to a jury or judge.

Conviction of sex offenses often brings multiple penalties that include prison, fines and sex offense registration. The registration is often the worst of the punishments because it may last the length of the convicted person’s life. In some states, the factors of the crime determine the sentence, how severe the crime is considered, and what type of crime has been committed. Some first offenses may be reduced to parole or probation through jury approval or a plea bargain struck by both criminal defense lawyer and prosecuting lawyer. However, in most states, years of prison and sex offender registration are the outcome for convictions.

Severe Punishments

Some states have no breakdown in sex crimes, lumping them all together as one. The separation of degrees allows different sentences to be issued based on the crime committed and other relevant factors. When harsher punishments are invoked, convicted sex offenders may spend decades behind bars before registration as a sex offender is necessary.

Acquittal of Sex Crimes

Many are convicted of sex crimes based on evidence and testimony that are convincing to the jury or judge. When the evidence and testimony are not enough to convict a person beyond a reasonable doubt, an acquittal of the crime or crimes occurs. Though the person is found not guilty, they may still be subjected to abuse, injury, harassment and other issues outside of the court proceedings. In these cases, a move to another area may be required to restart the life of the person found not guilty.

Local and state news may run the story with the person’s photo and name online and on television as well, causing issues for the person once a judgement of not guilty is issued. If this person decides to stay in his or her home or the same town, other issues may transpire through just being in the area. To assist in ensuring acquittal, a strong defensive strategy must be employed.

Sometimes the only way to do this is to obtain a lawyer early and build a case when only accusations have been issued. Once an arrest has occurred, a lawyer becomes a vital process in the proceedings. There are many aspects of a sex crimes case to consider. The evidence and testimony of victims and witnesses is essential to the prosecution and can often make or break the case. It is imperative the defending lawyer has knowledge of sex crimes and how to handle these claims and accusations.

Should it be Criminalized

Useful features of cameras and internet access are built in features in most smart phones with the capability of posting or sending pictures in real time. However, many people do not realize that when graphic images of children are sent to anyone, this is a violation of federal child pornography laws already in effect. Some states have similar laws or regulations. The receiving of these images is a violation of possession of child pornography laws and anyone of any age that receives these may be subject to a sex crimes violation. In some cases, the younger the recipient that receives them, the harsher the penalty they receive.

Criminal or Innocent Conduct?

There has been debate since the inception of federal law ruling over the sexting phenomenon. One particular case held three female teens on charges of felony child pornography crimes at a federal level after they took nude photographs of themselves through their phones and sent them to friends in photo messages. They were threatened to be prosecuted by the district attorney. However, a federal district judge declared the teens had successfully argued that the photos were not displaying sexual activity, nor were they showing the girls in a provocative position or manner. No violations of the state law they lived in occurred, and they were protected under the First Amendment. If this is how the issue is handled in some states, the problem of sexting with teens and children may be more complicated than just applying child pornography laws against the practice.
When some states have no laws against sexting, the prosecution of teens that send the messages is complex and complicated.

Pennsylvania is one such state that has no laws against sexting. New Jersey, however, does have laws but has proposed an alternative to criminal proceedings. Other states may consider the proposal of using the state assembly to create a diversionary program. This allows teens that have been charged with sexting crimes to go through a program that focuses on educating them. The program would free up court trials and bypass criminal penalties with an instructive program that explains to teens and younger children about the consequences and penalties that may arise through sending these messages to others. The idea explains in detail just how sex crimes may cause a person adverse issues for the rest of his or her life.

Different Approaches Depending on the State

Some states have extremely harsh punishments no matter how old the person sending the photo of and whether he or she is semi-naked, completely naked or engaged in sexual conduct. Sexting has been considered a sex crime in some states with the requirement of sex offender registration upon conviction. Other states have less harsh punishments in the way of fines or other types of programs that are used to explain why sexting is a crime.

Would Programs Prove A Deterrent?

Because of Megan’s Law, sexting is considered a felony sex crimes offense. This uses sex offender registration as a punishment for sex crimes, and the information is available to the public through various means. However, in many states there are not specific penalties targeting teens that send sexting messages to other teens. In many cases these messages are sent as a joke, to be funny to friends, as a flirtation and for other related purposes. Such programs as those of New Jersey in various states are created in the hope to de-criminalize sexting crimes for children under eighteen years of age who have consented to the conduct in question. When they are caught and put through this program, it is a hope that they will learn from the lessons and explain to others why they should not send these types of messages. Awareness of these programs is growing among states with similar outlooks with these crimes.

Sexting is Not Always a Crime

Because many states refuse to embrace child pornography laws for sexting crimes, there may not be criminal conduct simply because a sext exists. Advanced technology may prove this phenomenon obsolete once the fascination of this practice has passed. If an individual is under investigation for sending or receiving such images, a criminal defense lawyer should be consulted to help protect the individual’s rights.

Strengthens Protections Against Cell Phone Tracking

In the federal drug trafficking case United States v. Lambis, the use of evidence from a cell phone tracker has been controversial. Dubbed the StingRay by its manufacturers, the device mimics the activity of a cell tower.

Phones send data to it and receive signals from it just as they would with a real tower. By measuring signal strength, a StingRay can tell roughly how far away the phone is. And by taking measurements from different places, the phone’s location can be pinpointed.

StingRays allow law enforcement to intercept message contents and metadata from phones and other devices within their range, in addition to location tracking.

Through a warrant served to the the defendant’s service provider, the DEA were able to find unique identifiers tied to his cell phone. With this information they estimated the location, and then used the StingRay to track him down.

Without information gained through the warrant, the DEA wouldn’t have been able to use the Stingray to find Lambis.

After learning his approximate location from the service provider, a DEA technician was able to find his apartment building, and ultimately his apartment, using the StingRay.

After finding Lambis, DEA officers received permission from the occupants to enter and then search the apartment. During this search officers discovered drugs and drug paraphernalia that became evidence in the case.

On July 12, the court approved the defendant’s motion to suppress the evidence, concluding that the search violated his fourth amendment rights.

Judge William H. Pauley III reasoned that the DEA should have obtained a warrant before using the StingRay, writing “Absent a search warrant, the government may not turn a citizen’s cell phone into a tracking device.”

In the order to gran the defense’s motion, the judge cited a supreme court case that concerned the use of evidence obtained through thermal imaging. In that case, Justice Scalia delivered the opinion that—

“[w]here, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”
–Case Summary

Judge Pauley, of the district court of southern New York, applies the same logic to the StingRay.

The prosecution supported the DEA’s actions, comparing the StingRay to a drug-sniffing dog, but the court concluded that cell trackers can be used to find anyone; whereas a dog only finds people carrying contraband.

Beating a Breath Test

It is important to know how breath tests work, what their flaws are and how these factors impact results. How an inaccuracy affects the results of a test is important in knowing how to challenge the test as evidence. Various factors affect the usefulness of these test results as evidence to include the officer’s use and maintenance of the devices.

When the machines are not properly maintained, results of any test on any person may be between slightly off and completely incorrect. Standard protocols in calibration are required as well that ensure the devices are working within set parameters. If these are not applied, the results cannot be used as evidence. Errors in readings may cause a dismissal of the case due to lack of evidence or the lack of being able to prove intoxication. Other evidence may still be used, but breathalyzer tests are often the main piece of evidence used for conviction and convincing a judge or jury of the guilt of drivers.

Penalties for Conviction

The reason beating a breath test is so important in most cases is often due to the penalties someone is usually subjected to once conviction occurs. Various cases end quickly after a breathalyzer or a blood test has confirmed to a judge or jury that the person driving was also drinking before or during the drive. For DUI convictions, penalties may range from a simple term of probation for first offenses to include community service up to and including jail or prison terms with hefty fines. For any special plea bargains with a first offense conviction, the person may feel lucky considering the various strict and costly penalties he or she could be subjected to for these crimes.

Avoiding conviction by disqualifying a breath test is important in many instances. The act of causing a breath test to be inadmissible is not always easy, but with a knowledgeable criminal defense lawyer, a strategy may be initiated to find the flaws in the case when dealing with these tests.

Breath Tests Flaws

Even though a portable breath test may be used in the field, these devices are highly unreliable with potential to show a completely inaccurate reading. However, they are often enough to bring a person in on an arrest for DUI violations. When another breath test is administered in the department building, these machines may also reveal incorrect results based on various factors. When the legal alcohol blood content level is .08 nationally, it is important these machines only show accurate results. Unfortunately, these devices have been tested to have over a 40 percent error margin that causes numerous differences in test results. This could be up to a .03 percent addition to the result causing a legal driver to become someone considered to be driving under the influence.

For those unaware of how implied consent works, these individuals may be permitting a preliminary or portable alcohol screening test to be completed in the field when pulled over even if they are not legally obligated to do so. Those that are allowing these tests may not be aware of their rights or when they can refuse to take a test. The tests in the building must be allowed or a refusal usually leads to driver’s license suspension. And though a refusal while in the field may lead to an arrest, a criminal defense lawyer may suggest taking the second breath test at the police department as the portable devices are riddled with errors and false readings.

Challenges to Breath Tests

Results of various chemical tests may have altered results based on how they were administered and who administered them. Many states require those giving these tests to be trained in proper administration, but not all have the same skill in ensuring tests are given the same each time. Instructions for how to take the test may also be inaccurate for some individuals and cause a false reading. Challenging these tests is vital in some cases to ensure innocence is maintained, especially for those that were not drinking before or during the drive.

Not all tests are created equal. Some have histories of errors; others have complications with calibration. It is essential to ensure a criminal defense lawyer is obtained early to assist with knowledge and also in taking the tests. Later challenges may be discussed and a strategy initiated to discredit these tests that often have inaccurate results. A criminal defense lawyer can help establish a legal defense that is premised on these notions.