If you are arrested for driving under the influence, California’s Implied Consent law requires you to submit to a chemical test measuring your Blood Alcohol Content (BAC). Refusal to do so will cause the DMV to automatically suspend your license for a minimum of one year.1

Contrary to what many people believe, if you register a BAC of 0.08% or higher on a Breathalyzer test, all hope is not lost. An experienced DUI defense attorney may be able to challenge the results in court. If the court agrees that the breath sample you gave is inadmissible for any reason, a prosecutor may agree to dismiss the DUI charges pending against you.

Hiring an experienced DUI defense attorney from Wallin & Klarich to fight your DUI case could help you save thousands of dollars in court fines, fees to attend mandatory alcohol education classes and higher insurance premiums, in addition to avoiding the loss of your driver’s license and going to jail.

How Can Your Attorney Discredit Breathalyzer Evidence?

Breathalyzer readings are often critical pieces of evidence in drunk driving cases. Whether your attorney’s challenge will be successful depends on the specific facts and circumstances of your case. Here are five ways an attorney from Wallin & Klarich can potentially discredit Breathalyzer evidence in your DUI case:

1. Breathalyzer Not Reliable

Your Breathalyzer sample may have been contaminated due to the presence of foreign substances. Substances present in the mouth that contain alcohol can produce false positives because the amount of alcohol vapor they emit may be greater than the amount exhaled from the lungs.

For example, mouthwashes, breath fresheners, and toothache medicines often contain alcohol and can corrupt readings. Additionally, environmental factors, such as the presence of paint fumes, varnish and adhesives can produce false results.2

Most encouraging, The California Supreme Court has ruled that defendants can challenge the accuracy of BAC results from a breath test device.3

2. Breathalyzer Not Properly Calibrated

The California Code of  Regulations requires that Breathalyzers used by the police must be calibrated every 10 days or every 150 uses, whichever comes sooner, in order to accurately measure a driver’s blood alcohol concentration (BAC).4

Prosecutors must provide testimony from an officer that the breath-testing device was properly calibrated at the time of your DUI arrest. If an officer cannot provide this testimony or if your skilled attorney can successfully raise a reasonable doubt as to the device’s calibration, you stand a very good chance of getting your case dismissed.

3. Officer Did Not Properly Administer Your Breathalyzer Test

Breathalyzer
Our DUI attorneys may be able to discredit Breathalyzer test results.

To be admissible as evidence, the officer must have collected your breath sample as follows:

  • From deep lung air (otherwise known as “alveolar air”);
  • Having observed you for at least 15 minutes prior to your breath sample; and
  • During that time, you did not eat, drink, smoke, vomit, or regurgitate.5

Absent proper administration, an officer’s testimony regarding your Breathalyzer reading may be found to be inadmissible in court.

4. Breathalyzer Test Was the Result of an Unlawful Search

Even if an officer was properly trained and the Breathalyzer was properly calibrated, a reading can still be thrown out if the officer did not have probable cause to use the Breathalyzer in the first place.

A lawful DUI arrest requires the arresting officer to have:

  • Reasonable suspicion to pull you over, such as driving erratically or breaking a traffic law; and
  • Probable cause that you were intoxicated. Evidence can include slurred speech, odor of alcohol, bloodshot or watery eyes, impaired motor skills and impaired judgment.6

If either of these is absent, your attorney may be able to file a Motion to Suppress Evidence under Penal Code section 1538.5. A successfully argued motion means your Fourth Amendment right against an unlawful search and seizure was violated and the Breathalyzer test must be deemed inadmissible as evidence.

5. Testing Officer Doesn’t Testify

The Sixth Amendment protects your right to confront witnesses against you. This means you have a right to cross-examine the officer who performed your Breathalyzer test.

If more than one officer was present when you were arrested but the one who did not administer your breath test testifies at your trial, your attorney has good cause to challenge your breath test results as a violation of your constitutional rights.7

Our Skilled DUI Defense Attorneys Can Challenge Breathalyzer Results

A failed Breathalyzer test does not necessarily mean a prosecutor has a winning case against you. Contact our experienced DUI defense attorneys so we can help you challenge the results of the Breathalyzer test. Our attorneys have over 30 years of experience successfully defending our clients facing DUI charges. We may be able to discredit an improperly collected breath test and get the results thrown out in court. Without this crucial evidence, the D.A.’s office is likely to dismiss a DUI charge.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, our knowledgeable attorneys are conveniently located throughout Southern California so we can help you. We will help you get the best result possible in your case.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation. We will get through this together.


1. http://www.dmv.ca.gov/about/profile/rd/aps99.htm”>http://www.dmv.ca.gov/about/profile/rd/aps99.htm
2. http://www.bactrack.com/pages/are-breathalyzers-accurate
3. http://scholar.google.com/scholar_case?case=1577219747364961157&hl=en&as_sdt=6&as_vis=1&oi=scholarr
4. Cal. Code Regs., Title 17, §§ 1219.3, 1221.4
5. Id.
6. http://blogs.findlaw.com/blotter/2014/01/5-potential-ways-to-challenge-a-breathalyzer.html
7. Id.

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