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Defense for a Failed Breath Test

In a DUI arrest, an arresting officer will often seek to test the blood alcohol concentration of the alleged criminal. In doing this, they will often utilize a field sobriety test, but these are subjective and are commonly prone to error. So what then? Typically, an officer will use a breath test – these are considered far more accurate than a field sobriety test and are usually used as evidence in a DUI case.

If you have failed a breath test then, are you without hope? Of course not! While more accurate than a field sobriety test, breath tests are still extremely prone to error and should not be considered as the final nail in your case’s coffin. In fact, with the assistance of a heavyweight attorney on your side, there are several defenses that can be utilized to help challenge a breath test.

For instance, one of the first things that will be considered will be whether or not the machine used in the breath test was calibrated correctly. These machines are delicate and need to be treated with care to ensure that they are efficiently reporting the BAC. This, however, does not always happen.

The silicon oxide sensor can easily become contaminated by interference with other substances – for this reason, they are required to be recalibrated and replaced at regular intervals. If this maintenance is not occurring on a regular basis, the machine can become faulty and the results should not be used against a defendant in a DUI case.

Another common source of error is the topic is extenuating factors that can be seen as interference. For example, it has been reported by the National Highway Traffic Safety Administration that the acetone levels in people struggling with diabetes can have abnormally high levels of acetone. This can lead to a false reading on this machine even when no alcohol has been consumed. Similarly, studies have shown that some substances used in the treatment of asthma have shown to give false positive readings.

Criminal defense attorneys will also attack the qualifications of the arresting officer as well. If they were not properly trained to administer the test or if they made a mistake in the procedure, steps can be taken to suppress the evidence and get it considered inadmissible in court.

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