The police administer two types of breath tests after a DUI stop: a preliminary test during a DUI investigation and an evidentiary test after a DUI arrest. Preliminary tests are generally optional, except for underage drivers and drivers on DUI probation. You can politely decline to take them if you are concerned that the test results could be used to further incriminate you. However, an evidential breath test is mandatory, and a refusal can result in criminal charges.
Although breath tests are very common in DUI investigations and trials, they are subject to errors. You can challenge them in court if you believe that the BAC results being used against you are false. You can fight to have your test results excluded from evidence with the help of a skilled DUI attorney.
Here are some of the ways you can challenge them in a court proceeding:
The Arresting Officer Did Not Have Probable Cause to Administer a Breath Test
Generally, DUI arrests do not happen randomly. An officer cannot stop you at random and investigate you for driving under the influence of drugs or alcohol. They need probable cause to stop and investigate you for DUI. Otherwise, the stop and your subsequent arrest will be illegal, as well as any evidence gathered against you.
In most cases, DUI investigations start after a traffic stop. If you commit a traffic infraction like speeding, reckless driving, or distracted driving, an officer can stop and investigate you if they suspect you of a DUI. A DUI investigation can also start at a legal DUI checkpoint. If, after speaking to you, an officer suspects you of a DUI, they can start investigating and could eventually arrest you.
If you were randomly stopped by an officer and investigated for a DUI, and the officer did not have probable cause, you can fight your arrest and all the evidence against you.
The Breathalyzer Was Not Properly Maintained
Breathalyzers are devices used by the police to administer breath tests on motorists suspected of operating while intoxicated. Since they are mechanical devices, they must be properly maintained to ensure accurate results. A poorly calibrated device will likely yield an inaccurate result, which could lead to a wrongful DUI conviction.
According to Title 17 regulations, the police must maintain all breathalyzers in their care in excellent working conditions. This means ensuring they are adequately repaired in the event of damage. Proper maintenance also entails ensuring that the devices are well calibrated after every ten days or after using them 150 times (whichever happens first)
If your BAC results are unusually high, talk to a skilled attorney about your concerns. They will investigate to determine the condition of the breathalyzer used on you by the arresting officer. If the device was not properly maintained or calibrated, your attorney can file a motion in court to exclude your BAC results from evidence. This can leave the prosecutor with insufficient evidence to obtain a guilty verdict in your case.
The Officer Was Not Trained to Use the Breathalyzer
Title 17 regulations also require only specially trained officers to administer breath tests using breathalyzers. These officers receive special training on how to hold the device and guide motorists in providing a breath test that yields accurate results. The officer who administers our BAC test must be properly trained to do it. Otherwise, you can fight to have your test results dismissed from the court because they could be misleading or inaccurate.
Again, working with a skilled attorney is advantageous because they can quickly determine which officer administered your breath tests and whether the officer was trained to use a breathalyzer. Experienced attorneys can easily and quickly access information that could help in such a case.
The Officer Violated the 15-Minute Observation Period
If an officer stops you for a traffic violation or at a DUI checkpoint, they must observe you for at least 15 minutes before administering a breath test. During this waiting period, you must not vomit, burp, or eat anything, as this can affect your results. The essence of this wait is to ensure that as much mouth alcohol as possible is trapped in your throat, which will give an accurate BAC reading once the officer administers the test.
Most police officers ignore these rules and administer breathalyzers immediately or long after stopping a motorist. This can give an inaccurate reading, which is unreliable in a court proceeding. If you burp, vomit, or regurgitate during the 15-minute waiting period, any alcohol in your stomach will temporarily increase your mouth and throat alcohol, thereby giving a false reading. If the officer administers the test right away, the alcohol trapped in your mouth may give a falsely high result. If they wait for a long time before administering the test, the results will not reflect your BAC at the time of your arrest.
It helps to be observant after being stopped by the police so that you can explain to your attorney exactly how long it took the officer to administer the breath test. This will help them plan a solid defense against your charges.
Only One Sample Test Was Taken
Title 17 regulations also require the officer administering a DUI breath test to take two samples for a more accurate result. The results from the two samples must be very close for the officer to submit the tests as accurate. This means you should be asked to blow into the breathalyzer more than once. A single hurried sample can easily yield inaccurate results. Talk to your attorney about your concerns so that they can build a solid defense against the single sample that could be misleading.
You Have a Medical Condition that Produced a False Reading
There are diets and medical conditions that can trick a breathalyzer to produce a false high BAC reading even when you have not consumed any alcohol. Having such a condition or being on such a diet can increase your risk of being falsely arrested for a DUI. However, you can prove that the positive BAC result is false with the assistance of an experienced DUI attorney. Examples of medical conditions that could affect your BAC reading include diabetes, GERD, or being on a low-carb, high-protein diet.
If you are on a diet or have an underlying medical condition, it is advisable to disclose it to your attorney immediately after your arrest. They will investigate to determine how your diet or medical condition may have influenced the results and use that information to help achieve a favorable outcome.
GERD is the most common medical condition that interferes with a breathalyzer reading. It is a chronic digestive condition that causes acid reflux. It causes stomach contents to involuntarily rush back into your mouth, even long after you have eaten. The stomach acid that flows back with the stomach contents can trick a breathalyzer into giving a false positive alcohol reading.
Hypoglycemia or diabetes can also influence your BAC readings. This is because when you have diabetes, your liver often produces ketones, which have the same chemical content as alcohol. Since your body can't produce insulin, it burns stored fat for energy. Ketones are usually the byproduct of your body burning fat for energy. Ketones are also excreted from the body through your breath, which means that they can trick the breathalyzer into giving a false positive reading.
Also, a high-protein diet or low-carb diet can trick a breathalyzer into giving false positive results. This is because these diets cause the body to use stored fats for energy rather than glucose. The body produces ketones as a result.
Breathalyzers cannot distinguish between ethyl and acetone alcohol. That is why it is possible to obtain false positive results even when you have not consumed any alcoholic beverage. A skilled attorney can explain your condition or diet in court to convince you that, even though your BAC results are positive, you were not driving under the influence of alcohol.
An Alcoholic Residue in the Mouth Gave a False Positive
A false positive from a breathalyzer can also happen because of something you have recently consumed that could or could not contain alcohol. Having alcoholic residue in the mouth does not necessarily mean that your driving was impaired. Sadly, a false positive BAC can result in a criminal conviction even if you were driving safely at the time of your arrest.
When you consume an alcoholic drink, some of it remains in your mouth’s mucosal linings. This causes the residual mouth alcohol that can trigger a positive reading when you provide a breath sample. The officer administering the breath test will require a motorist to blow hard into the device to produce a lung air sample, which is the perfect breath sample for BAC testing. If you have even a slight amount of alcohol in your mouth, it could be picked up in the process and be deposited into the sample.
Sometimes a residual is created by a small amount of alcohol that is not enough to impair a driver. This can include a small amount of alcoholic drink, or alcohol-based mouthwash, spray, or cough syrup. Having residual mouth alcohol does not necessarily mean that you were illegally operating a vehicle. The residue dissipates after 15 to 20 minutes.
If an officer does not give you the 15-minute break before administering the test, your breath test could give a high false positive, even if you are not actually intoxicated. That is why Title Seventeen regulations must be followed whenever an officer stops a motorist for driving while intoxicated.
If your false positive is mainly due to the residual mouth alcohol, a skilled DUI attorney can fight the results in court with proper evidence and compelling statements. The court will dismiss your test results from evidence if it is convinced that the positive result was false.
Your Blood Alcohol Level Was Rising
A false positive BAC can also occur due to a rising blood alcohol level. When you consume an alcoholic beverage, your blood-alcohol concentration level does not rise right away. It rises steadily to an optimum level, then drops steadily until it reaches the lowest point. You can safely operate a vehicle immediately after consuming alcohol, before your BAC level starts rising. Once it rises to a high level, it may impair your driving. Generally, alcohol blood levels rise for about 30 or 45 minutes, depending on how much of it you consume.
In some instances, it takes up to two hours for the body to fully absorb the alcohol into the bloodstream. If the testing happens during this time, you will receive a high positive result, which does not necessarily match the amount of alcohol you have consumed. This can give an inaccurate result that could lead to an unfair conviction. If an officer takes a very long time to take your breath tests after stopping you for a DUI investigation, the BAC results will not be the same as they were when you were driving. The longer you wait, the higher your BAC rises.
An experienced DUI attorney can fight this in court because the results do not match your BAC at the time of your arrest. There is usually no way to tell the exact level of your impairment if the test was administered when the BAC was rising.
Find a Competent DUI Attorney Near Me
Do you or someone you love face a DUI conviction in Los Angeles, and is the main compelling evidence a falsely high DUI breath test?
Although breath tests are common determinants of a person’s BAC, they can be unreliable. A skilled attorney will investigate how and when your DUI breath test was administered to build a solid defense against you. They will also investigate the condition of the breathalyzer and the officer's training when the test was administered.
At Jonathan Franklin DUI Attorney, we review all evidence against you to determine loopholes that could undermine the prosecutor’s case. If there is a possibility that the positive high BAC was false, we will investigate it and use our findings to convince the court to dismiss the results as evidence. Call us at 323-464-6700 to learn more about us and how we can influence your case’s outcome.
