Challenging the Breathalyzer

Once a person has been stopped on suspicion of driving under the influence, there are some things that are likely to happen.  Many times, the events at the side of the road culminate with the administration of a breathalyzer test.  If that breathalyzer shows a reading of .08 or higher, then the person will be arrested and charged with a DUI-related offense.  Due to the wide-spread image of an officer administering the test and then placing a person under arrest, many people do not believe there is any way to challenge the breathalyzer results, but this is not true.

In the Commonwealth of Virginia, a person who is pulled over on suspicion of driving under the influence (DUI) may be forced to submit to a breathalyzer test pursuant to an implied consent law.  This means that if an officer has probable cause to arrest a person for DUI, then there are automatic penalties for refusal to take the test, including a one-year suspension of the person’s driver’s license after a first offense.  See Virginia Code Ann. 18.2-268.2.  A refusal to submit to a test may also be brought up in court during a subsequent DUI trial.

The fact that a person must submit to this test, or a preliminary breathalyzer before an arrest, does not mean that the results cannot be contested.  There are many things that can go wrong with a breathalyzer test that skews the results of the test.  Some of the more common issues with this type of test include:

• Improper administration of the test by the law enforcement officers – The fact is that not all officers receive the same training, nor do they apply that training in the same manner. There are many ways to skew the results of a breathalyzer, including failing to observe a person for a set period before administering the test.  This could lead to the person suffering an episode of acid reflux or heartburn, where a burp or belch can bring alcohol into the mouth, thereby leading to a concentrated result.  In addition, the officer could instruct the individual to blow into the breathalyzer with a long and deep breath, bringing more concentrated alcohol readings into the machine;
• The machine was not calibrated property – As with any sensitive equipment; it is necessary to maintain the breathalyzer by industry and manufacturer standards. At Swango Law P.C., we have a breathalyzer so that we can demonstrate all the different ways where the results can be skewed by an improperly calibrated machine;
• The breathalyzer was not operated in the proper manner by the administering officer; and
• The officer did not have probable cause to administer the breathalyzer – Despite what people may believe, an officer may not stop vehicles simply because it is a slow night. The operator of the vehicle must have done something to cause the officer to suspect that he or she may have been drinking or may have taken drugs.  If that probable cause does not exist, then it may be possible to exclude the results of the breathalyzer.

The results of the breathalyzer test are merely one component of a DUI case.  However, a successful challenge to these results may lead to a weakening of a prosecutor’s case to the point where charges will be reduced or dismissed entirely.  It is critical to retaining an attorney who will use every available defense to get the right results for his client.

If you face criminal charges relating to an arrest for driving under the influence, driving while intoxicated, or operating a vehicle while intoxicated, it is critical to getting the right legal help as soon as possible.  Jason Swango represents clients in the Hampton Roads, Virginia area, including Virginia Beach, Norfolk, Chesapeake, Hampton, Portsmouth, Newport News, and Suffolk.  Call us today at (757) 383-9229 to schedule an initial consultation.