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A possible DUI conviction may turn on a breathalyzer issue

On Behalf of The Foley Law Firm | August 4, 2020

If law enforcement stops you on suspicion of driving under the influence of alcohol, will you subsequently take a breath test? What happens if the officer arrests you?

A successful defense will begin with a thorough examination of the circumstances surrounding your arrest, including the possibility of a breath test device calibration issue.

How a breath test works

Basically, a breath test device is a computer with a mouthpiece attached. The device measures the blood alcohol content in your body. If the testing shows .08% or more, the officer may put you under arrest because with that much alcohol in your system it is illegal to operate a vehicle, but testing is not always accurate.

The Philadelphia story

In the summer of 2016, a private attorney in Philadelphia, PA, noticed that the breath devices in use had a problem: The calibration dates had expired. A breath test apparatus contains a liquid solution, which is responsible for ensuring the accuracy of blood alcohol content readings. When he brought the matter to the attention of the police department, the officers immediately removed all the machines from service and sent them out for recalibration. They went back into service with fresh solution before the end of the day. However, the police department had to inform the Philadelphia District Attorney of the expiration issue since it had the potential to affect the outcome of hundreds of DUI cases. The defense attorneys could raise the argument that testing affected by the outdated breath test devices was inadmissible in court.

Questions to ask

Calibration issues are among the various problems associated with breath test devices. There other questions to ask. For example, was the person who administered the test properly trained? Was there a malfunction in the device itself? Remember that a breath test apparatus is a piece of equipment, and equipment can fail for any number of reasons. That in itself may be enough to dismiss your case or at least serve to reduce the penalties you would normally face for DUI in the state of Colorado.



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