You probably know that it is against the law to drive if you are under the influence of alcohol. However, with the number of drunk driving arrests that are made each year, it seems many drivers are unaware of the offense’s legal meaning. In the United States, any person who operates a vehicle with a blood alcohol content (BAC) of 0.08% or more is deemed impaired and can be arrested for driving under the influence (DUI). Unfortunately, a driver’s BAC can only be determined by administering a drunk driving breath test or another chemical test – and if you don’t know your BAC, you could be breaking the law.
How Breath Test Devices Work
Breath test devices, commonly known as “breathalyzers,” can be used to convict a motorist of driving under the influence of alcohol. The statute provides that driving with a blood alcohol concentration, or BAC, of 0.08 percent or higher is definitively (or “per se”) driving under the influence. The language means that anyone who is driving, or otherwise in “actual physical control” of a motor vehicle, who blows a 0.08 percent BAC or higher on a breathalyzer device, can be convicted of DUI/DWI.
To perform a breath test, you must blow into a small device known as a breathalyzer. After blowing into the mouthpiece, the device will measure the amount of alcohol present in your breath. If the results indicate you have a BAC above the legal 0.08% limit, you can expect to be placed under arrest and charged with DUI.
Before you can be arrested, the officer must first establish that he or she had probable cause to do so. First and foremost, the officer must prove that he or she had a reason to stop your vehicle initially. Assuming your stop is warranted, the officer must then show that he or she had a reason to suspect you were intoxicated. If either of these requirements is not met, your breath test results may be inadmissible in court.
So what is considered “probable cause?” Under federal law, you can only be pulled over if you commit an offense—such as speeding or running a red light, for example. Driving late at night or in certain neighborhoods are not enough to warrant a traffic stop. Next, the officer must witness something that indicates you are under the influence of alcohol before a breath test can be administered. Some of the most common signs of impairment that officers look for include the smell of alcohol on your breath, bloodshot eyes, and open alcohol containers.
In most areas, it is against the law for a driver to refuse to perform a breathalyzer or other chemical test. Under these so-called “Implied Consent” laws, refusing the test may automatically lead to your arrest and, in some cases, you could even face harsher penalties than a person who failed the test.
Of course, if your arrest is warranted, there are still many ways to challenge your breath test results. Because the device is unable to distinguish alcohol from many other substances, breathalyzers are notoriously unreliable. In fact, research shows that certain substances—such as cough syrup, gum, and mints—can inflate your BAC. Likewise, medical disorders like acid reflux disease and diabetes are also known to produce false results.
If you were recently arrested for DUI after failing or refusing to perform a breath test, it is important to discuss your test results with an experienced attorney immediately. Due to the complex nature of DUI law, it is best to find a firm that practices DUI law exclusively. Unlike attorneys who provide a broad range of legal services, a DUI attorney is well-versed in the most important aspects of DUI law—including the science of breath tests.
Portable Alcosensor Test
With the advent of portable technology in recent years, law enforcement has kept up with the changing times as well. The physical field sobriety tests (FST) are only one part of their capable offense against drunk driving. If a driver displays drunken behavior, police may ask the subject to breathe into a portable sensor that measures blood alcohol content.
The most famous portable alcosensor is the Breathalyzer. This instrument relies on chemical oxidation to produce the alcohol level. However, the Breathalyzer is being phased out for newer forms of breath testing using infrared spectroscopy technology.
Common alcosensor devices are:
• BAC Datamaster
Regardless of the device, these instruments rely on indirect measurements of blood alcohol content. The only accurate means of measurement is a detailed analysis of a blood sample. It also does not measure a person’s actual level of intoxication, as everyone’s alcohol tolerance differs.
How can I defend my DUI charge based on an alcosensor test?
Every unit has its own strengths and weaknesses that a skilled DUI attorney can expose. The temperature of the suspect, the air temperature, the user’s breathing pattern, and the calibration of the instrument, among other variables, affect the test’s efficiency. All of these areas will be explored by an experienced DUI lawyer. If any potential for error has been uncovered, it will be exposed in the courtroom.
Endangering the life of yourself and others is something none of us intend to do. Sometimes we’re wrongfully accused, and sometimes we just make mistakes. Now is the perfect opportunity to hang on to your freedom and maintain your livelihood. Contact a DUI attorney today. They can make sense of it all and defend even the most serious charges.
To Take or Not Take the Breath Test
Experienced criminal defense attorneys know that DUI is more complicated. In fact, many experts in DUI dispute the accuracy of breath testing devices. These breathalyzers are known for false positives for a variety of reasons, including chemicals released from certain kinds of dental work and mouth alcohol.
That is the question many have asked when it comes to a DUI. We’ll help you break down the facts and determine whether or not you made the best decision.
A Breathalyzer test is used to determine a person’s BAC or blood alcohol content. It does this by reading the ethanol on a person’s breath. Ethanol is a key ingredient used in alcohol.
Police officers like to utilize the breathalyzer test when pulling over someone suspected of drunk driving. This is because the machine is portable and is fairly easy to administer during a traffic stop.
A Breathalyzer is a machine with a tube, which a person would blow into. It will detect if there is any alcohol on your breath by producing digital reading. If you blow over the legal limit (usually .08) the officer can arrest you for DUI.
However, just because the Breathalyzer produced a reading that made you fail, that does not necessarily mean that you failed. Many things can cause a false reading. If you took cough syrup or used a breath mint, this can produce a reading.
The breathalyzer machine, which is imperfect, is designed to measure certain alcohol-related or alcohol-based chemicals. This is why is detected breath alcohol, but also why a person who is on a ketogenic diet (such as Atkins) can cause the breathalyzer to have a false positive. Similarly, a diabetic whose blood sugar has spiked to very high levels can also show a false-positive result. Perhaps most problematically of all, however, is the fact that it is widely accepted that there is a margin of error for these devices, which is conservatively estimated at 0.01 percent BAC. This means that someone whose blood alcohol concentration registers at 0.08 percent BAC, whose reading is actually based legitimately on the consumption of alcoholic beverages, probably actually has a BAC between 0.07 and 0.09 percent.
Also, the Breathalyzer test can be tricky to use and only someone with the proper training should administer the test. And the test may not be functioning properly. Your DUI defense attorney will take all of these things into consideration when defending you.
So back to the tricky question – should you take the test or not take the test if requested by law enforcement? The short answer is you should take the test. That is because every state has implied consent laws. Since you have a driver’s license, you have already consented to give a chemical test if asked by a police officer.
Some states will automatically suspend your license if you refuse to take the test. Yet some states simply will cite you with uncooperative behavior.
The best thing you can do is speak with your DUI attorney. He or she will know your case inside and out and know the best way to defend you.