You should take your charges seriously if you are arrested for DUI in Virginia. You face harsh punishments if you are convicted, such as a jail sentence, large fine, suspension of your driver’s license, and a permanent criminal record.
Your best option to avoid the severe consequences you face is to raise defenses to the charges you face. This could result in the charges being dismissed or reduced to a less serious offense. One strong defense that could help in your defense strategy is to challenge the results of your breathalyzer test.
What Is a Breathalyzer Test?
A breathalyzer is a device used by the police to measure the concentration of alcohol in a person’s bloodstream. It works by analyzing the blood alcohol content (BAC) on their breath. There are different types of breathalyzers used in DUI cases in Virginia. They fall into two general categories:
- Passive breathalyzer. A passive breathalyzer is often used by police officers when they stop an individual for DUI. The individual would not need to actively blow into the device. It is considered a preliminary test to determine whether there are grounds to arrest the person and is generally not admissible in court.
- Active breathalyzer. An active breathalyzer requires the individual to blow into the device. They can be used as a preliminary breath test like a passive breathalyzer or as an evidentiary breathalyzer test result in the person’s criminal case.
How You Can Challenge Your Breathalyzer Test Results in Court
You will need the help of an experienced DUI lawyer to determine the most effective ways to challenge the results of your breathalyzer test. Which challenges will help you will be based on the specific circumstances in your criminal case. Here are seven common grounds used to dispute the test results:
#1: Breathalyzer Results Are Not Reliable
One way to challenge your test results would be to argue that the breathalyzer is inaccurate. Some scientific studies show that breathalyzers can produce false-positive results. This challenge would most likely be effective if your BAC was close to 0.08 percent.
#2: Breathalyzer Was Not Calibrated
In order for the breathalyzer results to be accurate, the breathalyzer must be calibrated properly. The prosecutor must have the police officer testify as to when and how the breathalyzer was last calibrated before it was used to measure your BAC. If they cannot produce this testimony, it could be grounds to get the charges against you dismissed.
#3: Police Officer Did Not Have Proper Training
The law enforcement official administering the breathalyzer test must have been trained to correctly use the device. If they lacked the necessary training, you may be able to show that your test results were not accurate.
#4: Test Was Not Administered Correctly
A breathalyzer is a complicated device and must be used correctly for the test results to be accurate. Some common mistakes the police make in administering a breathalyzer test include:
- They may have administered the test when too much time had elapsed between your consumption of alcohol and when you took the breathalyzer test.
- They did not observe you for at least 15 minutes before administering the test.
- They did not have you take a deep enough breath.
- They did not ensure that you did not eat, drink, smoke, vomit, or regurgitate before the breathalyzer test was administered.
#5: Police Stop Was Illegal
Even if the breathalyzer test was administered properly, the results can be challenged if the police officer conducted an illegal search. They must have had reasonable suspicion to pull you over, such as observing you weaving between lanes or violating a traffic law. In addition, they had to have probable cause that you were intoxicated. Examples of this include slurred speech, bloodshot eyes, or the odor of alcohol on your breath.
#6: Other Substances Affected Your Test Results
Some medications or medical conditions can cause a false-positive reading. If you were taking asthma medications, over-the-counter cold medicines, or used mouthwash or a topical gel before you took the breathalyzer test, this could have resulted in inaccurate test results.
#7: Officer Does Not Testify
Under the Sixth Amendment, you have the right to confront witnesses and cross-exam them at court hearings. If the officer who conducted your breathalyzer test does not testify, you can argue that the results should not be admissible because your constitutional rights were violated.
Were you or a family member arrested for DUI in Virginia? Start a live chat or fill out our online form to schedule a free consultation to learn how we can challenge your breathalyzer test results and raise other defenses for you. Let us help you get the charges dismissed or reduced to a lesser offense with less harsh punishments.