25 Ways to Challenge Breathalyzer Tests

Our Strategy for Challenging Breath Tests

If you are arrested for drunk driving and fail a Breathalyzer, Intoxilyzer or similar breath test, some lawyers will tell you there's no way to fight the charge.

At Pollack Law Group, P.C. (PLG), we disagree. We believe you should try to fight the charge in many cases, especially since a drunk driving conviction will have a major impact on your life. And fighting the results of the breath test is an important part of our defense strategy when we represent clients in New Hampshire, Maine or Vermont.

The breath test is not perfect, and our experienced DUI, DWI and OUI defense lawyers know what to look for when it comes to challenging the results of the test. We understand the procedures and problems associated with the breath test, its administration and its mechanics. We stay up to date on the latest reports about its use, including legal challenges and other court issues. We use all this information to help clients defend themselves against charges that are based on a breath test.

If you have failed a breath test and want to fight the drunk driving charge that results, contact one of the experienced criminal defense attorneys at PLG at 800-934-7287 or contact us online for a free consultation.

Our Breath Test Strategies

At PLG, we investigate every aspect of your breath test to identify weaknesses in the prosecution's case. Here are 25 ways we seek to challenge the test:

  1. At the time you took the breath test, was there any other alcohol in your system? The machine measures all types of alcohol, not just the alcohol found in beverages. The machine also registers alcohol from other sources such as paint removers, gasoline or cleaning fluids -- even mouthwash or breath spray. Did you know that Listerine has been shown to have an alcohol level of 27 percent?
  2. What was the margin of error reported in your case? The Intoxilyzer is especially known for inaccuracy, to the point where some states won't take action against a driver's license if the reading is exactly .08 percent.
  3. Is there a maintenance record or log that proves that the law enforcement officials using the test have followed the manufacturer's recommendations for calibrating the machine to ensure accurate readings?
  4. Are there other known instances of that same machine malfunctioning?
  5. Was the officer who administered the test certified to do so? Is the certificate available for inspection?
  6. Were you taking any medication at the time? What are the known side effects?
  7. Are you much heavier or lighter than the average driver? The equipment is designed to provide readings based on a weight range that might not apply in your case.
  8. Are you much younger or older than the average driver? Age, along with body weight, can affect how your body metabolizes alcohol.
  9. Were you properly instructed how to breathe into the machine by the officer who administered the test? If you held your breath, breathed too long or momentarily opened your mouth, the results could be inaccurate.
  10. Was there an electronic device on your body when you took the test? Cell phones, recorders and pagers may affect the results by interfering with the machine's electronic system.
  11. How long did you wait after being stopped before the breath test was administered? The test reports the blood alcohol content at the time of the test, which is not necessarily the time you were stopped by the police. Because alcohol absorption rates vary, an individual who blew .08 or higher using the machine might have been legally able to drive back at the time you were actually arrested.
  12. Can the officer prove that he or she watched you continuously from 20 or 30 minutes? Can he or she prove that you did not vomit, burp or put anything in your mouth before the test was administered?
  13. Did you hold your breath for a long period of time before the test was administered? Lots of people neglect to breathe when frightened or anxious, and studies have shown that holding your breath can raise the BAC reading significantly.
  14. How close were you to the police car when the breath test was administered? Studies have shown that some radio frequencies from scanners, radios and computers can interfere with the results of a breath test.
  15. How soon before the test was administered did you eat? If you had not eaten for a long time, or if you had just eaten, the results could be inaccurate.
  16. What did you eat if you had a meal shortly before taking the test? Some foods, such as bread and pizza, can result in false breath machine readings.
  17. Do you have heartburn, acid reflux disease or diabetes? These conditions are known to affect breath test readings.
  18. Had you been chewing gum, smoking or chewing tobacco before the test was administered?
  19. Is your metabolism slower than normal? If that is the case, your Breathalyzer results could be inaccurate.
  20. Is there is a reason, such as a fever, that your breath may be hotter than the average? A higher breath temperature can raise the level of alcohol in your breath.
  21. Have you been eating a low-carb diet for a while? If that's the case, you might have excess ketones in your system, which can be misread by the Breathalyzer as alcohol.
  22. Was the machine properly started and warmed up before the test was administered?
  23. Were you given the option of whether to take test?
  24. Did the officer administer more than one test? Because of inaccuracy problems, many state laws require two tests and require the officer to register the lower number reported.
  25. Was the machine used in the breath test battery operated? Can law enforcement show that the batteries were fully charged? Low batteries can result in inaccurate readings.

These and other factors can affect the results of the breath test used in the field, which could be cause for dismissal of the test results.

Contact Pollack Law Group, P.C.

If you were arrested and charged with DUI-DWI-OUI in New Hampshire, Vermont or Maine based on the results of a breath test, your conviction should not be automatic. Our lawyers dig deep to investigate the circumstances of the breath test. If we find a problem like one of those listed here, we will seek to have your charges dismissed. Learn more about our strategy for analyzing breath tests. Call PLG at 800-934-7287 for a free consultation. You may also contact us online.