Despite the Supreme Court’s rejection of one challenge tactic, DUI defense attorneys still have other means of challenging the results of breath tests.
If you get stopped for suspicion of a DUI, it’s more than likely the officer will request that you take a Breathalyzer test. While you do not have to take this test unless you are under 21 or on probation for a prior DUI, if you refuse the officer will likely arrest you. At that time you must take a blood or breath test. The good news is that breath tests are not infallible, and your DUI defense attorney may have several different tactics for undermining this critical piece of the prosecution’s evidence against you.
In one case recently in the news, a defense attorney took the somewhat original approach of arguing that breath-testing machines are inherently unreliable. Expert testimony was secured from a professor of medicine and physiology, who said that because breath-testing machines measure exhaled air rather than air deep in the lungs, results can be affected by the rate of breathing and other variables.
The trial judge found this testimony largely inadmissible and allowed the breath testing results to be used by the prosecution. The defendant was convicted of DUI and fined nearly $2,000. The State Supreme Court agreed with the lower court’s ruling, and the US Supreme Court recently refused to hear a challenge.
As a result, breath testers are now considered accurate and reliable according to legal precedent and inherent equipment flaws will never again be attempted as an argument for undermining Breathalyzer evidence.
Fortunately, we still have several other options, including arguing that:
- The equipment was not calibrated correctly
- The individual administering the tests made an error
- The breath sample was corrupted by environmental contamination
- You have a medical condition that interfered with the test
- The police didn’t keep accurate records
For example, if we can prove that it had been more than 10 days or 150 uses since the equipment was last calibrated, the results of the breath test would have to be thrown out. Or, we might be able to prove that police didn’t wait 15 minutes before administering the test, in which case residual mouth alcohol present in the mucous lining of the mouth could cause a false positive. Remember that residual mouth alcohol could be anything from a swig of beer to cough syrup to mouthwash.
The most important point to remember here is despite the recent court validation of the inherent accuracy of breath testing equipment, there are actually many factors that can cause a false positive. So don’t give up on your case just because there is strong physical evidence against you! Instead, contact an experienced DUI defense attorney and see what evidence they may be able to find to undermine the results of your breath test.
