Five Defenses Against Breath/Blood Tests in a California DUI

In most driving under the influence (DUI) cases, the outcome of a breath or blood test will likely provide part of the foundation for the prosecution's case against the driver. If a test was administered and it yielded a result of .08% or greater (above the legal limit to operate a motor vehicle in California), the driver will likely face DUI charges and the possibility of fines, jail time and license suspension or revocation.

It is important to remember that, although you may have failed a breath or blood test, this does not necessarily mean that you should or will be convicted of DUI. It also does not mean that you had an illegal blood alcohol level at the time you were driving. A skilled Orange County DUI lawyer can provide an aggressive defense against your charges based on your blood or breath test. Though the strategy will vary depending on the unique case, the following are five examples of potential challenges:

The law enforcement officer did not conduct a proper 15-minute observation period prior to the test. In California, an officer must observe a driver for 15 minutes before he or she administers a breathalyzer test. This observation must be continuous. The driver should not eat, drink, smoke, vomit or belch during this 15-minute time period, as this could affect the outcome of a breath test. If you were not properly observed prior to your test, your attorney could use this to your advantage when challenging your charges.

The breath test or blood test was not conducted in accordance with regulations. California Code of Regulations Title 17 sets forth specific requirements for chemical testing in relation to DUI charges. These are necessary to ensure the tests yield as accurate of results as possible. The 15-minute observation period is covered by these regulations, as is the manner in which tests are administered, how testing instruments (breath test devices, etc.) are maintained and how blood is collected and stored. A single violation of these regulations could provide grounds for the dismissal of test results.

The breath test yielded an inaccurate result due to "mouth alcohol." Breath tests are meant to test the air from deep in the lungs, but in some cases the presence of alcohol or other substances in the mouth can interfere with the test. This may happen if the driver burps or vomits within 15 minutes prior to the administration of the test, or if the driver has heartburn, acid reflux or similar medical conditions, recently used mouthwash or mouth spray or has dental work that allowed food or other substances to get caught in the teeth. In these scenarios, "mouth alcohol" may cause a breath test to yield a much higher blood alcohol concentration (BAC) than the driver actually had deep in his or her lungs.

The test was administered too long after the driver was behind the wheel, and the driver's BAC was still rising. Alcohol takes time to be absorbed in your system, and the absorption rate will vary depending on a number of factors, including diet, weight, metabolism and other individual issues. While alcohol is still being absorbed into your system, it is rising. If you were to drink and then immediately drive, your BAC may be below the legal limit. If you are arrested and taken into custody and tested one, two or even three hours later, however, your BAC may have risen during that time. A blood test or breath test may then show you had an illegal BAC when in fact your blood alcohol level was below the legal limit while you were behind the wheel.

Another factor influenced the outcome of your BAC test. Depending on the circumstances surrounding your arrest and test, there may have been another factor that placed undue influence on the outcome of your blood or breath test. It is your attorney's job to thoroughly investigate every detail of your testing to determine if anything went wrong, was done in violation of proper procedures or resulted in a violation of your legal rights. Even a seemingly minor detail could provide a jury with sufficient grounds for a not guilty verdict.

Interested in learning more? At the Law Offices of Virginia L. Landry, we offer experienced DUI defense counsel to drivers throughout Orange County and the surrounding areas in Southern California. Now is the time to actively protect your rights, driving privileges and freedom. Call our firm today to discuss your case.

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