Written by attorney James Richard Rowe II

Attacking the Breathalyzer Test (Q&A)

Q. I was arrested for driving under the influence with a BAC of .09, barely above the legal limit. Do I have any defense to this crime, or should I just plead guilty?

A. Although a breathalyzer test registered above the state’s legal limit of .08, there are still a number of defenses you may have to the charges, and if any of these defenses is applicable to your situation you may be able to win your case and avoid a conviction on your record.

First, a defendant may argue that the blood alcohol test figures used by the police are incorrect or inadmissible due to an error in the administration of the test. Sometimes, for example, the testing device was not properly maintained, or the officer who administered the test is not properly certified or violated procedures during testing - such as failing to observe the suspect for the appropriate time before administering the test despite a policy to do so. Also, it may be argued that certain medical conditions or medications inflated the test results.

A defendant may also argue that the police did not have probable cause to arrest him for drunk driving, and thus any alcohol test results should be "suppressed" on the basis that they result from an illegal arrest.

Another defense is that the defendant was not "above the legal limit" when he was driving. He may argue that he consumed liquor right before he drove, and that the alcohol had not yet been absorbed into his blood. (Depending upon your stomach contents, it can take as long as three hours for alcohol to be absorbed into the blood, so a person's blood alcohol content may continue to rise even after he stops drinking.) One could argue that during the time between the traffic stop and the administration of the blood alcohol test, that alcohol was absorbed and caused a misleadingly high test result.

Of course, the best way to avoid a conviction for a DUI is to NOT DRIVE DRUNK. However, in the event you are arrested for a DUI be sure to contact a criminal defense attorney. The legal fees for this type of case are usually expensive, but it is worth it in the long run to obtain the best results possible.

James Rowe is an attorney with The Law Firm of Rowe & Associates, and can be reached at 312-345-1357 or via email at [email protected].

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