Once you have been accused of violating the DUI law, and you are referred for the breath test, there are some tactics to defend that. It is a normal observation that the breath test is not that accurate in judging a person being drunk or not. So these tactics can certainly help you in escaping it. They include:
1. Insufficient Observation Period
- 1. Insufficient Observation Period
- 2. Regurgitation of Gas
- 3. Inadequate Deprivation Period
- 4. Physical Problem
- 5. Behavior and Actions
- 6. Problem with Breath Test Room
- 7. Environmental Exposure to Volatile Fumes
- 8. Air Bag Defenses
- 9. Video Tapes
- 10. Urination
- 11. Unintentional Use of Alcohol
- 12. Something Alcoholic in Mouth
- 13. Something in the Mouth Having Contaminating Substances
- 14. Improper Tests
- 15. Refusal to Second Independent Test
- 16. Untrained Officer
- 17. Manual or Training Protocol
- 18. Inadequate Inspections
- 19. Lack of Investigation
- 20. Blood Alcohol Level
- 21. Elevated Breath Temperature
- 22. Breath/Blood Ratio
- 23. Sampling Variability
- 24. Irregularity of Blowing Pattern
- 25. High Protein Diet
- 26. Diabetes
- 27. Breath Test Operator
- 28. Chemical Test Admonition
- 29. Statutorily Imposed Time
- 30. Consumption of Alcohol during Driving
- 31. Issues Regarding Officers
- 32. Officers Committing Crimes
If there is no continuous observation for 15 minutes, before the first breath sample has been taken, it can serve as defense by giving invalid results.
2. Regurgitation of Gas
Before the test, during those 15 minutes, you can belch, burp or have slight regurgitation of gas
3. Inadequate Deprivation Period
Don’t rinse your mouth before retest and within initial 15 minutes of test. Don’t even vomit or belch
4. Physical Problem
It also happens that you may not be a proper subject for breaths testing if you have got a physical or health issue. They can be:
- If some of the respiratory syndromes and disorders were diagnosed and treated before the arrest. They can be gastric reflux, hiatus hernia or intestinal problem, Gastro Esophageal Reflux Disease, Irritated Bowel Syndrome, or Acid Reflux Syndrome etc.
- Dental condition is also included in this context that can be gum disease/gingivitis/pockets around roots, dentures or bridgework that actually traps mouth alcohol and thus the breath machine sample is gets contaminated by it.
- Issues related to Respiration e.g. asthma, bronchitis, emphysema or chronic obstructive pulmonary disease.
5. Behavior and Actions
If independent witnesses show that your behavior and actions were not matching the results of the test, it can also lead you towards defense.
6. Problem with Breath Test Room
If there comes any problem with the breath test room or circuitry, that can be Radio Frequency Interference from a cell phone, officer’s radio, copy machine or other equipment with surge capabilities etc, someone smoking in or near machine, shared power supply with heater or other appliance, recently painted walls and issues of this sort can actually make the machine to give high readings artificially.
7. Environmental Exposure to Volatile Fumes
If you had an exposure to volatile fumes that can be Lacquer, gasoline, paint, dry cleaning fluids etc, it can cause chemical interference and thus falsely elevated and invalid reading.
8. Air Bag Defenses
Some of the defenses also include diffusion of light, propellant exposure, cut lips, lungs and airway irritation & fluid build-up from caustic gas propellant etc. They cause “the Tyndall effect”.
9. Video Tapes
High readings are refuted by video tapes thus it supports the sobriety
Don’t urinate for 3 to 4 hours. This also gives high test results.
11. Unintentional Use of Alcohol
There can be some unintentional use of alcohol. The sources can be Nyquil, Vicks Formula 44, lip balms, toothache drops etc.
12. Something Alcoholic in Mouth
Having something in the mouth that contains alcohol, e.g. Breath Drops with SD alcohol can give the invalid readings.
13. Something in the Mouth Having Contaminating Substances
Have those things in the mouth that contains interfering substances e.g. Skoal snuff – wintergreen; Altoids curiously strong mints etc.
14. Improper Tests
The results of both follow up and improper or out of agreement test must match to prove you a victim. The results must be within 0.02% of each other.
15. Refusal to Second Independent Test
One way of defense can be the refusal of officer towards the second independent test.
The denial to the blood test is also a reliable target. It is also an accurate method for the analysis.
16. Untrained Officer
Untrained or marginally trained officer can be a way of escape for you.
17. Manual or Training Protocol
One defense tactic can be the failure of the officer to follow the manual or training protocol.
18. Inadequate Inspections
Some machine inspectors inadequately inspect.
19. Lack of Investigation
Lack of investigation of the alternative causes and the reports of the police that supports sobriety can also be helpful for you.
20. Blood Alcohol Level
The blood alcohol level is high at the time of driving but the BAC would be lower during the test proceedings.
21. Elevated Breath Temperature
Fever, hot tub, sauna, detention in hot sun or back of patrol car in summer, dancing, menstrual cycle etc can elevate your temperature.
22. Breath/Blood Ratio
The minor errors get multiplied 2100 times in calculating the blood/breath ratio (2100:1). You can show an abnormal calculated value done through testing or by any expert.
23. Sampling Variability
Inherent sampling variability or margins of error can also lead the reading non admissible. For example taking the reading 0.055, state acknowledges the precision problem as +/- 0.01%.
24. Irregularity of Blowing Pattern
You can have irregularity in the blowing pattern. That can be done through blubbering and crying which artificially causes the problem of high water vapors.
25. High Protein Diet
When the ketenes are converted to isopropyl alcohol, it can also elevate the invalid results. This is executed if you take a diet having high protein content and then you introduce your self to a diet having higher carbohydrate content. By this mechanism auto-generated alcohol production gets triggered. This is also known as “auto-brewery” syndrome.
Conversion of high acetone into isopropyl alcohol is also executed when you are diabetic or hypoglycemic. In this case you have to consume alcohol in certain ways.
27. Breath Test Operator
This condition can also be helpful be for you if the breath test operator gets your first BAC results. Readings will not support a .08% per se case. Then he will wait for some few minutes to take another test. A reading will be obtained which will be above the per se limit.
28. Chemical Test Admonition
If the officer gives you the chemical test admonition and then he apparently goes too far by threatening dire warnings for which there is no factual basis regarding the suspension of the license.
29. Statutorily Imposed Time
If the state gets failed to prove the results that if they were obtained within 3 hours after the driving was ended in order to create a presumption about your BAC at the time of driving.
30. Consumption of Alcohol during Driving
The sufficient consumption of alcohol can be proved by you during driving or after the driving was ended. This must be done before the arrival of the police.
31. Issues Regarding Officers
If your officer gets retired, indicted, fired or moved away, this can be useful as well.
32. Officers Committing Crimes
If the officer commits crime in handling cases that can be obstruction of justice or perjury, state cannot proceed thus benefiting you.