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HOW TO CHALLENGE A BREATHALYZER TEST

Michael Cohen • November 13, 2019
Breathalyzer Test — Eau Claire, WI — Cohen Law Offices
Most people know that if they are pulled over while driving because they are suspected of being under the influence of alcohol, they will probably have a breathalyzer test administered to them. However, it is important to understand what can affect the results of breathalyzer tests. Why? Mainly because if you're not under the influence of alcohol, but the breathalyzer indicates that you are, you can still be arrested.

With that in mind, take stock of the common items that can affect a breathalyzer test. They include some kinds of cough syrup, mouthwash, asthma medications like Albuterol, Salmeterol and Budesonide have been known to affect breathalyzer test as well as acetone in the breath can sometimes cause false positive readings

Breathalyzer readings are key in many drunk 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. Here are a few ways to beat a Breathalyzer 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. For example, the testing subject must be observed 20 minutes before the test to make sure they did not burp, vomit or belch, which invalidates the test.

 2. BREATHALYZER NOT CALIBRATED.

Just like any electronic measuring instrument, Breathalyzers need to be calibrated regularly 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. BREATHALYZER TEST WAS AN ILLEGAL SEARCH.

Officers must be properly trained on how to use a Breathalyzer and even if the 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 drunk. 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.
These are just a few potential ways to challenge Breathalyzer evidence in a DUI case. If you have questions or concerns, contact Cohen Law Offices today for a free consultation.
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