How a Good DUI Attorney Can Challenge Breathalyzer and Other Test Results

by | Jan 12, 2017 | DUI Defense

Even the most accurate scientific instruments can produce inaccurate results if they are used incorrectly, are improperly maintained, or are damaged. The breathalyzers and other breath-testing devices used by Colorado law enforcement to determine the blood alcohol content (BAC) of drivers suspected of driving under the influence of alcohol are no different. While the results of breathalyzer tests can be the key to a drunk driving conviction, proving that those results were flawed and unreliable can be the key to an acquittal or dismissal of the charges. If you are charged with a DUI, contact a criminal defense attorney immediately.

While many people arrested and charged with DUI see a breath test result above .08 as the nail in their DUI coffin, the reality is that the breath testing machines used by Colorado police are extremely sensitive, and malfunction frequently. If you are arrested and charged with DUI or driving while ability impaired (DWAI) based in whole or in part on the results of a breath test, the unreliability of those machines, the many improper ways they can be used, and the unique physical and environmental factors involved in the testing can give a skilled DUI defense attorney any number of ways to attack the test results. Often, if the breath test result can be deemed so unreliable as to be inadmissible in court, the charges may collapse entirely. An experienced Colorado Springs drunk driving lawyer will know exactly how to attack the reliability of breathalyzer test results.

Three of the most common ways to attack the reliability and admissibility of breathalyzer test results include:

  • Improper cleaning or calibration. Breathalyzers are very sensitive. They are also used frequently on the parade of individuals brought to the station under suspicion of DUI. This means that they need to be cleaned and recalibrated on a frequent and consistent basis. On average, unless the breathalyzer machine was recently cleaned and calibrated prior to your test, it can be incorrect by as much as .03 grams of alcohol per 210 liters of your breath. Additionally, if the machine is not adjusted to account for outside factors such as air temperatures, it can give false readings. These discrepancies can mean the difference between innocence and guilt, especially if your test results are close to the legal limit.
  • “Mouth Alcohol.” Your body can produce what is called “mouth alcohol,” which can mimic the alcohol found in a bottle of booze. Mouth alcohol is present if someone burps or belches, and brings up some air from their stomach. Air from the stomach has a great deal more alcohol in it than deep lung air, and can throw off the results dramatically. So too can acid reflux and outside contaminants such as asthma inhalers, cough syrup, smokeless tobacco, mouthwashes, or blood in the mouth from gum disease or gingivitis. When these natural and non-intoxicating factors are not accounted for, the test results showing a BAC above the legal limit can be suspect.
  • Breathing Patterns. Breathing patterns may affect the breath alcohol reading. Holding your breath can significantly increase the readout number. Conversely, hyperventilating or taking deep breaths can reduce your breath alcohol concentrations.

Police are required by Colorado law to follow very specific protocols when administering breath, blood, or chemical tests to determine the blood alcohol content of a suspected drunk driver. These steps are supposed to ensure the accuracy of the test results. But when those steps are not followed or other factors that can impact the reliability of the test results are not taken into consideration, those questionable results should not be allowed to determine the fate of someone accused of DUI. To make sure bogus test results aren’t used against you in your Colorado drunk driving case, call an experienced DUI defense attorney who can aggressively attack those results and work to defeat any charges based on them.

James Newby

James Newby

James Newby is a criminal defense attorney in Colorado Springs and the managing attorney of the criminal justice law firm James Newby Law. James got into law because of a deep-rooted passion for helping good people that may have made a poor choice that could have lasting consequences.