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10 Ways Tempe DUI Lawyers Challenge Breath Test Evidence that may Lead to a Dismissal

Tempe DUI Arrest 

If your arrest was based on DUI breath test results, you should contact a Tempe DUI lawyer as soon as possible. Defenses may exist surrounding your breath test evidence. The prosecution will not seek out deficiencies in the breath test evidence, on your behalf. You will need to hire an experienced DUI lawyer who defends DUI charges in Tempe frequently. They will be your advocate and examine all aspects surrounding your breath test results to make certain they are accurate and valid. If not, the evidence may not be admitted in court to use against you, which may ultimately lead to a dismissal of the Tempe DUI charges.

Challenging DUI breath test evidence for DUI defense

The best Tempe DUI lawyers often find weaknesses in the breath tests, or violations in procedure regarding surrounding the administration of the test. Specific procedures and requirements must be complied with by law enforcement agencies to assure accuracy of the breath test results. Your criminal defense attorney will the evidence and circumstances surrounding the breath tests. If they find certain elements exist that could have affected the validity of the test results, they will challenge the breath test evidence. Below is just a sample of 10 ways that an experienced DUI trial lawyer might consider challenging in your defense that relate to the breath test:

(This list is not all inclusive):

1)      You were arrested based on the results of a Portable Breath Test (PBT). PBT results are not admissible in court. The mobile units are not calibrated, and are designed merely as a preliminary tool to help police decide if the driver may be impaired due to drugs or alcohol.

2)      The Breathalyzer machine may have a history of malfunction or improper calibration. The law requires that all official breathalyzer units must undergo routine maintenance and calibration at regular intervals; and maintenance and repair records must be kept on them.

3)      The Operator of the breathalyzer did not possess a valid, unexpired license. Breathalyzer operators must possess a valid and current license to administer the test, and comply with certain protocol to avoid operator error.

4)      The value of the simulator solution was not recorded. In order for the BAC to be admissible in court, the value of the simulator solution used to obtain the suspects breath test results must be recorded.

5)      Outside chemicals such as asthma nasal sprays resulted in a false reading. False readings can be produced as a result of chemical or substance interference by certain, medications, or nasal sprays.

6)      The suspect suffered from gastric reflux. Certain medical conditions such as severe heartburn or chronic gastric reflux may skew the BAC reading, resulting in a false higher reading.  DUI case trial results hold that conditions can cause fluids to find their way to the defendant’s breath resulting in an inaccurate reading.

7)      Failure by police to give proper instructions for breathing patterns. Breath test machines are calibrated to test no more than a 10 second long breathing sample. If the breath sample was longer, it may result in a higher BAC level. Hyperventilation or shallow breathing will also interfere with the accuracy of the reading.

8)      Breath test was not conducted within 2 hours of driving of a vehicle. The prosecution must prove that the defendant’s BAC level was .08 or greater within two hours of driving.  BAC is not constant. It rises as it is absorbed, and falls as it is processed by the body.

9)      Failure of police to observe the suspect during the 20 minute observation period. Prior to administering the breath test, the police are required to observe the suspect carefully for 20 minutes prior to administration of the breathalyzer test. This is to ensure they do not belch, regurgitate, or consume anything that could affect the accuracy of the reading.

10)   Second breath test was out of range. The second breath test must be within 0.020 alcohol concentration of the first test. If not, additional tests must be administered until two consecutive tests fall within 0.020 alcohol concentration of each other.

Tempe DUI Defense Lawyer

This is just a sample of arguments that can be raised by your Phoenix DUI Attorney, to establish accuracy and validity of breath test evidence. Every case is unique and holds its own set of facts. An experienced DUI trial attorney, who defends charges in Phoenix AZ, will know which areas to target in your case. Penalties for a DUI conviction are too severe in Arizona, to look at only the prosecution’s evidence without examining it. Most Phoenix DUI lawyers provide a free consultation for active DUI charges. In the least, you should consult one to discuss your charges and defense options.

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Law Office of James Novak

4500 S. Lakeshore Drive

Tempe AZ 85282

(480) 413-1499

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