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Can You Challenge The Breath Test On A DUI?

Posted by Ronald D. Hedding | Oct 08, 2018 | 0 Comments

Most of the DUI's that I've seen over the last twenty-five years that I've defended, the person is giving their breath. There are occasions where someone gives their blood. Way back in the day, they used to take urine.

Now it's either blood or breath, and most of the time it's easier for the police to get the person's breath, so they're trying to cajole the person even though they're not supposed to do that into taking the breath test versus the blood test which can be a bit more of a pain for the police to deal with.

Challenge Breath Test Calibration

So, we're usually dealing with breath tests on DUI's in Los Angeles, and absolutely, they can be challenged. But of course, not everyone can be challenged unless you've got some good facts and circumstances. The machines that are used they've got to calibrate them and make sure they're making right. That's one area of attack. You can check the machine to see if it was taken out of service for example, either before, during or after the time that the client gave their breath test. So, that's one area of attack related to DUI breath tests.

Also, the police have to observe somebody for fifteen minutes before they administer the breath test, because if somebody burps, vomits or gets something in their mouth that can affect the breath test and the police don't account for that, then that's another area you can attack them – if they don't observe the person for fifteen minutes.

And ways to get that sort of evidence is the police to put that they did that, or sometimes there's video inside the police stations that you can get to be able to show that the person was not observed for fifteen minutes before they actually took the test, and that would violate the police's own policy and rules related to DUI's and you'd have a good argument that the person's breath test was impacted somehow because the police didn't do what they were supposed to do.

Independent Expert

Probably the best way to challenge a breath test is to have your own expert – somebody who knows the machine that's being used, somebody that has all the facts and circumstances surrounding your case and your arrest, you blowing in the machine obviously has your breath result.

The best chance you're going to have to challenge a breath test is if your breath result is close to the legal limit, and if you've got other surrounding facts like your driving wasn't bad, you passed some of the field sobriety tests according to the police. There's a whole host of things that go into what your likelihood of success is in challenging a breath test in Los Angeles County related to a DUI arrest and prosecution.

Obviously, your best bet is to meet with a DUI defense attorney. Give them all the facts and circumstances of your case. Be honest with them about what happened. That will give them important information that they can use to determine whether or not the breath test will be able to be used against you – whether it can be challenged and whether you could be prosecuted successfully for a DUI.

But, that's really only one piece of the puzzle. The defense attorney is also going to need the police report where the police are saying what they observed and what information they have if they were to testify during a DUI trial in LA.

They are also going to need to get the- little strip that comes out of the machine that's used to take your breath. They are also going to need to see what's going on with that machine – if there's any issues with it, and they may need to consult with an expert depending on what they find to see what the expert has to say about it.

Once they get your version, the police report – I like to talk to the prosecutor and see what they have to say about it as well – then if I do think there's an issue with the breath test I will get an expert involved.

We'll see what the expert has to say after they review everything, and now you're in a position to evaluate whether you might be successful in challenging the breath test or not. Of course, you can challenge it. You just need to have the evidence to challenge it.

If you don't have the evidence – if your client is falling down drunk and they've got it on video – you challenging the breath test is not going to do any good. You need to have the facts and circumstances – the person did well on the field sobriety – you can prove it.

Their BAC is not that high. They're saying they only had a drink or two. Now you're starting to get into an area to say, how this machine is coming up with such a high result over the legal limit. There must be a problem with it, and now you put the mechanisms into operation to be able to challenge that breath test as it relates to your client's DUI case pending in Los Angeles County.

About the Author

Ronald D. Hedding

What Makes Ronald Hedding Uniquely Qualified To Represent You? I've been practicing criminal defense for almost 30 years and have handled thousands of cases, including all types of state and federal sex crime cases. All consultations are discreet and confidential.


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