DUI and Failed Breath Tests

Some drivers believe that a failed breath test is the final nail in the coffin in a DUI (driving under the influence) case. This does not have to be true. There are ways to effectively challenge breath test results and other evidence in even the most seemingly solid DUI case.

In California, a driver may be charged with DUI if he or she submits to a breath test that shows a result of .08% or greater. A driver may also be charged with DUI if his or her abilities are impaired by alcohol and/or drugs, regardless of BAC.

To some, a breath test may seem like an infallible method of determining whether a driver is driving under the influence of alcohol, but in actuality there are many ways such a test can go wrong. For example:

  • The breathalyzer device may have malfunctioned,
  • The device may not have been properly calibrated,
  • The test may have been administered improperly, or
  • A non-alcohol related factor may have resulted in a high/false BAC reading.

A breath test must be administered in a certain manner if it is to yield as accurate of a result as possible. The device must be regularly maintained and calibrated to make sure it is functioning properly.

The officer who administers the test must follow specific protocol, including a 15-minute observation period of the driver prior to the test to make sure he or she does not smoke, drink, belch, chew gum or vomit. This can skew BAC results.

Factors that Can ‘Skew’ BAC Results

There are other issues that can also affect breath test results. Certain medical conditions, like gastroesophageal reflux disease (GERD), can affect the level of alcohol picked up by a breathalyzer in a driver's breath sample, which may not necessarily correlate with the level of alcohol in his or her blood.

Then there is the issue of "mouth alcohol," in which alcohol in a driver's mouth could be detected after recent dental work, for example. Even diet and metabolism can affect breath test results.

It takes a thorough understanding of breathalyzer devices and breath test regulations, as well as DUI laws as a whole, to build an effective defense against DUI charges that are based on a "failed" breath test.

Challenging Breath Tests

Even what seems like the smallest detail could present enough of a reasonable doubt to avoid a conviction – it's a matter of finding that detail and presenting it to the court in a clear and compelling manner.

At the Law Offices of Virginia L. Landry, Inc., our extensive experience in DUI defense and our commitment to our clients enables us to challenge breath test results where others cannot.

Serving all of Orange County, we fight for drivers' rights in the presence of failed breath tests, field sobriety tests and officer testimony regarding driving behavior and outward signs of intoxication.

To learn more about our firm and the ways we can help you, contact us for a free case evaluation!

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