Breathalyzer instruments can be reliable as long as they are properly maintained, properly calibrated, and the proper procedures are used for administering tests. With that said, there are a number of statutory requirements for maintenance, for calibration, and for the proper use of the machine. If all of those things are done right, they’re actually quite accurate. On the other hand, the preliminary breath test, which is given through a handheld device at the side of the road, and which is often used if probable cause is challenged during a trial, is much less reliable for a number of reasons. Even though this is the case, it is rare to see attorneys challenge them. This is why it’s important to have a Manassas DUI attorney that understands the different kinds of breathalyzer tests and where you can make headway, particularly with the preliminary breath test device.
There are a number of ways that breathalyzers can be off and give scores that are too high. The most common is when the machine is detecting mouth alcohol rather than alcohol levels through the air that is exhaled from the lungs. When someone has a drink of alcohol, there will be residual alcohol that stays in your mouth for a period of 20 to 30 minutes. If a person takes a test within that period of time, whether it’s one at the side of the road or at the station, that can skew the result. If a person throws up or belches, that can also reintroduce alcohol from the stomach back into the mouth and can cause the test to be too high. These breath errors may be used as a defense.
You can absolutely suppress the evidence of an erroneous breathalyzer in court. There are multiple ways to do this. One is simply by showing that the government didn’t follow its own procedures. If they can’t show that they follow their own procedures, then a proper foundation has not been laid for the introduction of the results of the breathalyzer test, that will be kept out. Another way that it happens is with the expert refuting the breath test results for any number of reasons such as: a person’s alcohol couldn’t be as high as the government claims based on what they had to drink, or showing that there was something problematic with either the calibration or the maintenance history of the machine itself.
The breath test machine that’s used at the station actually has to be calibrated every single time that it’s used. The machine currently in use has a feature that causes it to calibrate before the test and then calibrate again after the test. In addition to that, there is regular maintenance that has to be done, like any machine that has parts that wear out and have to be replaced, and frequently it’s not known that something is not functioning until there have been a number of bad tests that have occurred. In many cases, the maintenance is done correctly, but in some cases it’s also true that there is an error that comes up before the problem is addressed.
Government experts and government officials are aware, that there are issues with the current breathalyzer technology. The reason that they continue to use them is that the courts continue to accept them. There has not been great success in showing that the problems that exist with the current technology is something that changes out comes in the case. Another reason is simply money. If all of them had to be replaced, it would cost the government. They simply don’t want to spend the money unless they’re forced to.
One common misconception about breathalyzers in Manassas is that you have to take it, whether it’s the preliminary breath test or the breath test machine that’s used at the station house. You always have a right to refuse the test. However, if you refuse to take the one at the station, there’s a consequence to that, which is potentially being convicted of a refusal charge, which carries a hard one year loss of license, meaning there is no possibility of getting a restricted driver’s license.
The most important thing to know about breathalyzers is that there’s a big difference between the preliminary breath test at the side of the road and the test that’s ultimately given at the station house. The preliminary breath test, while it is supposed to be for the purpose of helping people clear themselves, in practice is something that is used by the government to prevent a defendant from challenging probable cause for arrest in their case. So, if a person finds him or herself facing a DUI, he or she should never take the preliminary breath test.
There is never a good reason to take it. The breath test at the station house is a little bit different because there is a serious consequence for not taking that test, which is a hard loss of their license for a period up to one year, meaning that they can’t get a restricted license at all. Therefore, the stakes are much higher on that one and in most cases, it’s going to make sense to take that test, both from a tactical perspective, and from your attorney’s perspective.
Implied consent is a law that says that if an individual drives their vehicle on the public roads or anywhere in the Commonwealth of Virginia, they have by doing so impliedly consented to give a sample of either their breath or their blood if it can be shown that the police have developed probable cause to arrest them. For the government to prove a particular level of blood alcohol in the defendant, they must introduce at trial a certificate of analysis of either a breath test or a blood test.
Implied consent says that if an individual is arrested for a DUI and there is in fact probable cause, they are required to give this sample or be charged with the additional civil offense of refusal, which in its own right is a serious charge that can result in an individual losing their license for a period of 12 months without the possibility of receiving a restricted driver’s license.
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