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A Failed Breath Test

Suppose you have had a couple of drinks, and when driving home, the police pull you over for suspected DUI. What follows after you have been stopped can have dire consequences to your future, freedom, and even finances as the officer approaches you to collect proof of whether or not you’ve violated California laws against drunk-driving.

A conviction of DUI in California may mean hefty fines, court costs, jail time, and, sometimes, more financial costs in the form of elevated insurance rates. However, before you face all these, the officers and prosecutor must prove beyond any reasonable doubt that you broke drunk-driving laws. One common way to do this is through breath testing. But what follows should you fail a breath test? This could be one of the several questions you ask yourself when you are placed under arrest in Los Angeles after your breath test reads beyond the stipulated legal limits. DUI attorneys at Jonathan Franklin DUI Attorney will further explain this issue in this article.

Breath Test Results Can Prove that You are Guilty of DUI

Taking a breath test involves blowing in a breathalyzer device, which will then measure your blood alcohol concentration (BAC). For many motorists, a BAC level of 0.08% or more will imply they have broken the California drunk-driving law since the law categorically provides that a person driving with a BAC of this level or above will have violated the law. Having said this, even that person who scores below the 0.08% BAC level may be ruled to be guilty of drunk-driving if there’s sufficient proof that they were impaired by alcohol while driving.

Fighting Back Against Breath Test Results

A driver who passed field sobriety tests (FSTs) but fails a breath test could face charges and be convicted of a drunk-driving offense in California. Alternatively, a driver who passes a breath test (scores lower than 0.08% BAC level) and fails FSTs could also face DUI charges if the prosecutor thinks there’s enough proof from the sobriety tests to substantiate that the motorist was impaired.

Several people wonder what to do if they have failed a DUI breath test, and a few even consider pleading guilty. However, we advise you not to enter a guilty plea. The failed test results don’t have to be the end of your case. You should first consider several other factors concerning how your DUI case can still be won. If you speak with a skilled criminal lawyer, he/she can fully assess the facts surrounding your stop and arrest and determine whether there are any grounds for contesting your conviction. These grounds may include:

  • Suppressing the breath test results
  • Quashing other proof thereby weakening the charge against you
  • Plea bargaining to lower the charges
  1. Suppressing the Breath Test Results

It is indeed easier to beat a case when you’ve refused to undergo a breath test instead of when you have performed it and failed. Also, it’s true that just because you’ve been put under arrest doesn’t mean that the court is going to convict you. And, just because you did not pass your breath test doesn’t mean the court is going to find you guilty.

You can discredit the validity of the breath test on several legal grounds and try to quash the results as admissible proof. If you succeed, it will imply that the results will not be presented at trial. The following are the different ways your lawyer can apply to suppress evidence:

Challenging the Lawfulness of the DUI Stop

Law enforcement should have a specific and legitimate reason to stop you at a sobriety checkpoint and question you as well as request you to submit to tests. The police need to adhere to specific rules on how they create checkpoints and how they guide drivers into the place to carry out FSTs.  Failure to adhere to these rules can invalidate the results of the FSTs and breath test, whether you failed or passed.

Also, the officer may have observed only a few suggesting signs to indicate that you were driving under the influence. For instance, he/she may have observed you only to have bloodshot eyes and slow speech. In this case, if there is no other indication to suggest that you were impaired, your lawyer could argue that the signs the officer observed weren’t enough proof for you to undergo FSTs and take a DUI breath test, regardless of whether you failed or passed. If this argument is successful, the judge may dismiss your case, and the fact that you failed your breath test will not matter.

Challenging Driving of a Vehicle

In case the prosecution cannot prove beyond a doubt that you were driving a vehicle, to begin with, it won’t count if it can show that you did not pass the DUI breath testing and were under the influence. It could be that the officer only found you next to a car intoxicated, or you were seated on the passenger’s seat. If an officer suspects that you’re intoxicated and might have operated a vehicle, they will usually place you under arrest even if they did not see you driving.

If the police or prosecution cannot show that the auto was driven recently and that it is you that was driving it, then it does not count what your BAC level may have been. No law prohibits you from being drunk next to a car.

Arguing that You Got Intoxicated After Driving, and not While Driving (the rising blood alcohol defense)

In case you drank alcohol just before you drove your automobile, the alcohol that’s in the blood system might still be rising at the time of the breath test. If this is the case, it will make you test with an elevated BAC than what you had, in reality, at the time of driving your car. This scenario is referred to as the rising blood alcohol.

This defense is dependent on how an alcoholic drink is absorbed in your blood system. When you drink an alcoholic beverage, it takes a little time for it to be absorbed in your body system and into the bloodstream.  Different variables influence the speed at which the alcohol will be absorbed into your body. These variables include your weight, the last time you ate, sex, and any health condition you might have.

Generally, however, it takes approximately thirty to ninety minutes for alcohol to be entirely absorbed in your bloodstream. At this period, when the alcohol is in the process of absorption by the body, your blood alcohol concentration level will rise slowly. Therefore, the timing of taking your breathalyzer test could be a crucial aspect in establishing whether or not you were operating the vehicle while intoxicated.

Challenging the Results of the BAC Test

In the U.S, we do not have trials by machines; we have jury trials. Simply because a machine gives a number doesn’t mean that number is reliable scientifically. Contrary to the common belief, breathalyzers are not 100% accurate, neither are they infallible. There are several reasons why a breath test result might not be reliable. It could be that there was an issue with the breathalyzer device used to conduct the test; for instance, it may have been set to assume that everyone is average, which you may not be. Or, you may have developed a health condition that might have affected the results of your breath test. Other reasons include:

  • Lack of or inadequate training of the person that administered the test
  • Failing to wait for the stipulated observation period
  • Failing to maintain or calibrate the machine correctly

Challenging the Breathalyzer Itself

A lot of legal precedent and evidence exists to regard breathalyzer equipment as a defective device with inherently undependable results. California doesn’t have scientifically reliable methodologies for calibrating breathalyzers. Additionally, breathalyzer test results shouldn’t be used in court as evidence until it can be proven that those results are correct.

Your lawyer may be capable of challenging the proper calibration and maintenance of the breathalyzer equipment. This is particularly so if the prosecution doesn’t produce either an appropriate eyewitness to attest to its appropriate maintenance or the documentation that details the testing and certification of the particular breath test device used in conducting your test. Careless handling of breathalyzers by the government has made several people that have failed breath tests to use these defenses.

Sometimes, the above defenses require your lawyer to hire a DUI breath test professional that will help figure out why the results should not be relied upon. For instance, even if the results indicate a higher BAC and the expert testifies that they are not reliable, you may be found to be innocent of your charges.

  1. Suppress Other Proof to Weaken Your DUI Charge

While your lawyer works to have your failed test results dismissed, it could help to initiate a concurrent attack on any other illegal actions or procedural violations by the arresting officer. Limiting the quantity or quality of proof around the breath test device will help strengthen your winning position as well as lower the possibility for the failed breath test leading to a conviction. Here are the various aspects you can consider:

Illegal Interrogation

If an officer asks you a leading question like, “have you been drinking?” he/she is asking you for possibly self-incriminating info, which he/she may use against you at trial. You have a right not to answer this question under the Fifth Amendment. That’s why an officer is obligated to read Miranda rights to you before a custodial interrogation. Whereas the police are allowed to ask this question after they pull you over, you don’t have to answer it, and you can always invoke your right to remain silent. Should you invoke this right and the officer continues questioning you anyway, any statement you make may be discredited.

Invalid Field Sobriety Test Results

Apart from a breath test, field sobriety tests are one of the forms of proof the prosecution uses to establish impairment and intoxication. If the arresting officer didn’t obey the laid down protocol when he/she was conducting the tests, the results might be discredited. And in case the tests were conducted properly, there is ground to claim that the FSTs are in themselves erroneous measures of sobriety and impairment.

Irrelevant Evidence

If there’s any irrelevant character or hearsay proof that the prosecution introduces into evidence, your lawyer can challenge it in court. Your attorney can argue that the proof was improperly acquired, presented, or was immaterial to your charges.

Handling & Storage of Proof

The prosecution may have failed to store the physical evidence it is trying to use against you properly, or it may have mishandled it. Procedure and evidence violation may create the possibility to suppress that evidence.

  1. Plea Bargaining to Lower the DUI Charges Against You

Most DUI charges are solved through plea bargaining, whereby the defendant pleads guilty to reduced charges like wet reckless, dry reckless, drunk in public, an exhibition of speed, etc. 

A plea deal can change the harshness of the repercussions that a failed breath test could have in cases where you’re unsure of prevailing in court. The various advantages of trying to plea bargain include:

  • The proof of DUI against you could be weak, maybe because of suppressed proof, forcing the prosecution to lower the charges.
  • You may face lenient penalties, for instance, probation, enrollment into an alcohol treatment program, no jail sentence, instead of the severe standard punishment you would have suffered.

Hire a DUI Criminal Defense Attorney Near Me

The bottom line of this discussion is you haven’t entirely lost your drunk-driving case because of a failed breath test. Lawyers skilled in California law have several tools they can use to defend your rights and build a solid defense even when your BAC level is beyond the lawful limit of .08% and is being used against you as evidence. If you have failed a breath test and are being charged with DUI in Los Angeles, you shouldn’t confess to anything. Instead, contact Jonathan Franklin DUI Attorney law firm at 323-464-6700 as soon as possible to share the details of your case.  Our attorneys will assess the facts surrounding your case and advise you on the next course of action.

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