Call Now 323-464-6700 for a Free Consultation

A Failed Breath Test is Not a Slam Dunk Driving under the Influence Conviction

It is easy to believe that a failed Breathalyzer test will automatically convict you of driving under the influence, or DUI, in California. Remember, every case is different. That statement doesn't have to be true in your DUI case. There are effective ways to challenge breath test result and other types of evidence the prosecutor may have against you.

In the State of California, a driver may be charged with DUI depending on his or her blood alcohol concentration, or BAC. If a driver breath test results show a BAC of 0.08 percent or higher, he or she can be charged with DUI. Commercial drivers have a lower BAC level. A BAC level of 0.04 percent is sufficient for a commercial driver to be charged with DUI.

A driver can also be charged with DUI without a BAC limit greater than 0.08 or 0.04 percent. He or she can be arrested with DUI if her or his abilities are impaired by drugs or alcohol. However, for this blog we will focus only on a DUI charge resulting from an unlawful BAC.

Some people believe that a breath test is infallible. A BAC result that is over the limit makes it easier for the prosecution to convict a person of DUI. Actually, there are many ways a breath test can provide an inaccurate or false result. For instance:

  • Non-alcohol related factors may cause high BAC results such as mouthwash or breath fresheners.
  • Breathalyzer device malfunctions.
  • Incorrect administration by law enforcement.

A breath test must be given in a very specific manner to obtain the most accurate results. That is why the device must be calibrated and constantly maintained to ensure it is functioning properly. Besides making sure the device is correctly maintained, the officer is responsible for yielding the proper results as well. The officer conducting the test must follow specific protocol, such as waiting for 15 minutes before the test is conducted. This is called an observation period prior to testing. The officer watches the driver to make sure he or she does not drink, smoke, chew gum, vomit or belch. All these things can skew the BAC results.

There are other things that can make a BAC test give a false positive result. For instance, certain medical conditions such as gastroeophageal reflux, or GERD. GERD affects how the Breathalyzer detects the level of alcohol in the driver’s breath sample. The change may not correlate with the driver’s BAC level.

Another problem is called mouth alcohol. There term refers to how the device detects the alcohol in a person’s mouth to create a higher than normal BAC. One example is dental work. A Breathalyzer can detect if a driver has recent dental work and unfortunately translate that into an alcohol content. Unfortunately, even a driver’s metabolism and diet can change the breath test results for the worse.

Understanding Breathalyzer devices and breath test regulations are difficult. In fact, they are just as complicated as California’s DUI laws. That is why it is possible to build an effective defense that challenges a failed breath test. What seems like the smallest detail can be big enough to show reasonable doubt and avoid a DUI conviction. The most important part is finding the detail and showing it to the judge or jury in a compelling and clear way.

At the Law Offices of Jonathan Franklin, we know how to challenge failed breath test. We fight for your rights and know how to thoroughly investigate the potential reasons why a failed breath test could have occurred. Contact us today to schedule a free consultation so we can start attacking your breath test results and resolve your case.

Board of Governors,

America's Top-Ranked Law School For Trial Advocacy

Stetson University DUI Program

Contact Information

Jonathan Franklin DUI Attorney
6777 Hollywood Blvd Ste 508
Los Angeles, CA 90028