Breathalyzer readings are key in many drunken driving cases, but this type of evidence can also potentially be challenged.
Whether that challenge will be successful depends on the specific facts and circumstances of your case. But in general, here are five possible ways to "beat" Breathalyzer evidence in court:
1. Breathalyzer Not Reliable.
Jurors can consider the reliability of all evidence presented to them, even when the evidence is a Breathalyzer reading. As one Iowa man proved by blowing a "HI" reading on a Breathalyzer, the device may not always produce accurate readings.
Another example: An Ohio judge ruled in 2013 that a particular brand of alcohol breath-testing device used by the state was "not scientifically reliable," reports The Columbus Dispatch. Armed with the proper research, you may be able to convince a judge or jury not to trust the Breathalyzer used on you.
2. Breathalyzer Not Calibrated.
Just like any electronic measuring instrument, Breathalyzers need to be calibrated in order to accurately measure a driver's blood alcohol concentration (BAC).
To avoid the evidence being thrown out, prosecutors must provide testimony from an officer that the breath-testing device was properly calibrated at the time of your DUI arrest.
3. Officer Lacked Breathalyzer Training.
You can potentially challenge a speeding ticket by questioning the arresting officer's training with a radar gun, and you can do the same thing with a Breathalyzer. Without the proper training, an officer's testimony about how a Breathalyzer reading relates to your alleged intoxication may be deemed unreliable.
4. Breathalyzer Test Was an Illegal Search.
Even if an officer was properly trained and the Breathalyzer was properly calibrated, a reading can still be thrown out if the officer did not have probable cause to use the Breathalyzer in the first place.
Your arresting officer must have had:
- Reasonable suspicion to pull you over. Usually this requires testimony that you were driving erratically or breaking a traffic law.
- Probable cause that you were intoxicated. Evidence of this includes slurred speech, smell of alcohol, etc.
If either of these are absent, you may be able to get the Breathalyzer evidence thrown out.
5. Testing Officer Doesn't Testify.
You have a right to confront the witnesses against you under the Sixth Amendment, which means you have a right to cross-examine the officer who performed your Breathalyzer test. If there were two officers present, but only the one who didn't test you testifies at your trial, you can try to challenge the breath-test evidence as a violation of your constitutional rights.
These are just a few potential ways to challenge Breathalyzer evidence in a DUI case. As always, it's wise to consult with an experienced DUI attorney in your area to figure out the best way to handle your defense.
- Can You Beat a DUI Charge on a Technicality? (FindLaw's Blotter)
- California Supreme Court Opens Door for Challenges to Breath Tests in DUI Cases? (FindLaw's Blotter)
- Can I Beat a Breathalyzer? (FindLaw's Blotter)
- Don't Be Fooled: Breathalyzers Malfunction More Than We Think (FindLaw's KnowledgeBase)