Will having smokeless chewing tobacco in at the time of a breathalyser affect the results of the breathalyser?
10 attorney answers
Absolutely. In order for the breathalyzer to work properly there should be a 20 minute period with any foreign matter in the mouth, including even smoking tobacco. I've had a number of DUI's dismissed merely because the officer did not observe the defendant for this 20 minute period.
As previously answered any item in your mouth may affect the results. Locate an experienced criminal defense lawyer in your area, who specializes their practice in DUI DEFENSE, make an appointment, bring whatever evidence, documents or witnesses that you may have, engage in a meaningful face-to-face consultation. Each case is different. Get advice on your specific case and scenario. Most on AVVO offer free consultations. Best of luck to you.
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Having anything in your mouth, or stomach fluids, can increase the amount of alcohol shown on a breath test.
Often people think that because it isn’t a murder case, a drunk driving case is simple. Nothing could be further from the truth. These cases can be among the most complex a criminal defense lawyer handles. The government is willing to spend an incredible amount of money to convict you though. They will have expert witnesses available for consultation and trial.
That you have been charged or that some contraption says your alcohol level was at a certain level does not mean that you are guilty. It certainly does not mean that you can be proven guilty using competent, valid evidence.
Field sobriety “tests” are designed to give police a reason to arrest. You cannot “pass” them. The police will admit that almost a third of healthy young adults who take these tests without any alcohol will be judged to be “under the influence” – and that assumes they are properly administered!
After even a first drunk driving conviction, you may face employment discrimination. You will certainly be charged higher for insurance. Having such a conviction will also make you a target for drunk driving arrest in future interactions with police. You will automatically become a suspect.
You will want a lawyer who is familiar with field sobriety “tests,” perhaps one who is certified to administer these tests. You will want a lawyer familiar with the weaknesses of the contraptions that are used to report alcohol or drug levels. You want an experienced trial lawyer, used to cross-examining police officers. Police officers are practiced, experienced witnesses.
That is, you want an experienced drunk driving defense lawyer, whether you call the offense DUI, OWI, DWI, OUI, or drugged driving.
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Probably not - under Alabama law by decisional authority, any numerical result from the preliminary breath test (the handheld device used by the police to determine probable cause to arrest) is inadmissible as a matter of law in an Alabama court. See, Boyd v. City of Montgomery, 472 So. 2d 694 (Ala. Cr. App. 1985) and Pitts v. City of Auburn, 552 So. 2d 184 (Ala. Cr. App. 1989).
The device that is used by many, if not most, police agencies in the state of Alabama to determine probable cause of alcohol impairment is the 'AlcoSensor' (model III and IV) manufactured by Intoximeters, Inc. of St. Louise, Mo.
Your best course of action is to seek the professional services of a qualified criminal defense attorney to assist you, and especially one that specializes in the defense of DUI cases. Check the Avvo listing under 'DUI/Traffic' for a list of qualified attorneys in your area.
HAVING anything in your mouth can affect your breath test results.
I am licensed attorney who focuses on Serious DUI Cases such a 2nd DUIs, 3rd DUIs, 4th DUIs, and Felony DUIs and DMV hearings. I also have much experience handling car accident cases. Although the information I provide is helpful, it is not legal advice. Although Avvo makes it clear to consumers that attorney answers to questions are for general purposes only and do not establish an attorney-client relationship, some attorneys prefer to add their own disclaimers to answers. You can set your custom disclaimer here and it will be automatically added to your answers. Do NOT include any direct solicitations or contact information.
Yes, it can. In most cases, best practices requires the officer to determine that the subject has no foreign material in his/her mouth. In the case of chew, the tobacco can act as a sponge with alcohol which creates "mouth alcohol" rather than "breath alcohol." The first question should be what the test result was. Obviously, this "defense" can be less effective with a 0.20 BAC than with a 0.08 BAC.
You should consult an experienced DUI/DWI attorney. Given a possible difficulty with the breath testing in question, the next inquiries would focus on probable cause for the stop and for the arrest. An experienced attorney will want to review the NHTSA approved Standardized Field Sobriety Tests to determine if they were properly administered. The basis for initial police contact will also be a subject of inquiry.
Hire an experienced attorney to assist you with these issues.
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Having any substance in your mouth when taking the breathalyser could affect the results of the breathalyser. If the results are tainted that will definitely aid in your defense.
It can definitely have an impact on the roadside handheld device. An experienced DUI attorney can easily challenge the performance of the test and the admissibility of the results based on the requirements for performance handed down by NHTSA. I would not post anything else on here and I would hire an attorney to help. DO NO GO THIS ALONE. You will not help yourself at all. Hire a lawyer, be honest and upfront and make sure that the attorney gets all the requisite motions and discovery requests filed to challenge the admissibility of the results. In my experience, there are a lot of things that can be mishandled during DUI stops and you need all the help you can get to challenge each of them.
The answer will depend on the sensitivity of the equipment to the tobacco you chewed. I suspect that law enforcement has anticipated that a defendant may try to mask the presence of alcohol and probably has accounted for such potential masking agents and/or inhibitors.
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Having chewing tobacco in your mouth when the breath test was administered may have an impact. You will need to retain a local attorney to assist you with the case and to explore any issues with the accuracy of the test.
Experienced Criminal Defense Attorney--