Former Traffic Court Judge Serving New York and New Jersey

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Sometimes, a breath test is full of hot air

A New York City police officer pulled you over and suspected you of drunk driving. He or she administered a breath test that indicated you had a blood alcohol concentration level at or above .08. For the officer, this might conclusively prove your impairment and provide probable cause (a legal reason) to arrest you. However, to a criminal defense attorney, it's far from conclusive.

Questions about the machine

A police officer might attempt to convince you that a breath-testing machine "doesn't lie." Of course, it's an inanimate object, so it can't lie, but several factors can affect whether it gives accurate results:

  • Calibration: It's essential that the machine remains properly calibrated to avoid false positives.
  • Batteries: Like other hand-held electronics, it requires working batteries.
  • Human error: Improper training can affect the outcome of testing. In addition, officers often become comfortable with using a breath testing machine, which means they might not pay appropriate attention to detail during its use.
  • Software: Like other hand-held electronics, the breath-testing machine requires software. As anyone with a computer or smartphone knows, glitches and bugs affect their accuracy.
  • Consistency: It actually takes more than one test to receive a reliable result.
  • Environmental factors: Chemicals in the air at the scene such as varnish, paint fumes or adhesives, among other things, could affect the outcome of your breath test.
  • Foreign substances: Any substance you ingest that contains alcohol could cause a false reading. If you use certain breath fresheners, mouthwashes or even a tooth medicine, inaccurate test results could occur.

These represent the most common reasons to doubt the reliability of a breath test. It's important to remember that breath test results merely provide probable cause for an arrest. Law enforcement officials must take the next step and obtain the legal authority (through your consent or a search warrant) to take a blood sample, which usually produces more accurate results.

Challenging the breath test results is crucial

As you can see, you don't have to simply accept the results of the test. Without probable cause to arrest you, any evidence gathered by officers could become inadmissible in court. Challenging the accuracy of the breath test becomes a crucial part of any defense to a charge for driving under the influence of alcohol for this reason. If information comes to light indicating that the results can't be trusted, any charges filed against you might not stand. 

Of course, other aspects of your contact with law enforcement need review as well. A breath test might provide probable cause for an arrest, but the traffic stop started it all. Many people also question the reliability of field sobriety tests.

An officer might have done everything right, and you could be facing penalties associated with a DUI. You might benefit from exploring other options that could keep a conviction off your record, keep you out of jail and otherwise minimize the effects that a DUI could have on your personal and professional life. The best way to effectively deal with such charges isn't by going it alone. Contacting an attorney could greatly enhance your chances of achieving the best possible outcome under the circumstances.

Pulled Over? Arrested? Tell Us What Happened.

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