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Can You Challenge The Breath Test On A DUI?

Posted by Ronald D. Hedding | Oct 08, 2018

In most of the DUIs that I've seen over the last twenty-five years that I've defended, the person is giving their breath. There are occasions when someone shares their blood. Way back in the day, they used to make 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 persuade the person, even though they're not supposed to do that to take the breath test versus the blood test which can be a bit more of a pain for the police to deal with.

So, we usually deal with breath tests on DUIs in Los Angeles, and they can be challenged. But of course, not everyone can be challenged unless you've got some good facts and circumstances. They've got to calibrate the used machines and make sure they're making it suitable. That's one area of attack. You can check the device to see if it was taken out of service, for example, before, during, or after 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 took the test, and that would violate the police's policy and rules related to DUI's. 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

The best way to challenge a breath test is to have your expert – somebody who knows the machine that's being used, somebody who has all the facts and circumstances surrounding your case and your arrest. You blow in the device 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 impaired, you passed some of the field sobriety tests according to the police. A whole host of things go into your likelihood of success in challenging a breath test in Los Angeles County related to a DUI arrest and prosecution.

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 essential information that they can use to determine whether or not the breath test will be used against you – whether it can be challenged and whether you could be prosecuted successfully for a DUI.

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

They will also need to get the little strip that comes out of the machine used to take your breath. They will also need to see what's going on with that machine – if there are 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. Of course, you can challenge it. You need to have the evidence to challenge it.

If you don't have the evidence – if your client is falling drunk and they've got it on video – you challenging the breath test will not do any good. It would help if you had the facts and circumstances – the person did well in sobriety – to 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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