You went out to dinner with some friends, and you had a few drinks. You didn’t think much of it, since you only had a few and were there for several hours. You got behind the wheel of your vehicle and started heading home when a police officer comes up behind you and pulls you over.
You had gone over the center line, likely when you were trying to change the radio station. The officer says he’d like to give you a breathalyzer test because he can smell alcohol on your breath. You agree, because you know you won’t be over the limit.
A few minutes later, you are shocked to find out that your breath test has come back at .09. How is that possible when you stopped drinking and hour or two ago and didn’t even drink much? The officer takes a second reading that comes up .12, even higher than the first.
One thing to recognize immediately in a situation like this is that the breath test should come back the same or nearly the same as the time before. .09 to .12 is a large discrepancy, and it’s a sign that something is wrong with the breath test or that it has been given incorrectly. Out of the three methods of blood-alcohol concentration testing, this is why a breathalyzer is one of the least reliable. Small problems with calibration or issues with giving the test itself can impact the results and land you with an unfair charge.
A better BAC test is a blood test, which the police cannot ask you to do without a warrant. Fortunately, a breath test is easier for your attorney to fight in court because of several reasons. First, if you used any substances that leave alcohol in the mouth, your test could have been inaccurate. For example, toothache medicines could contain alcohol that would upset the results of the test.
Consistency is also important. If both your tests came back so far apart, the officer should have taken additional tests or tried a different breathalyzer unit. Human error could contribute to those errors, however.
There are many ways to defend against a breathalyzer test’s results. Your attorney can talk to you about what you were doing before and during the test to see which kind of defense works best for your case.
Source: Nov. 30, -0001