A Breathalyzer is a device used to estimate the blood alcohol content of the person using it. When the user exhales, ethanol present in the blood is oxidized and measured by the device. We defend people accused of DUI and are very familiar with Breathalyzers, how they work and how their findings can be challenged.
Breathalyzer was originally a brand name for a device, but is now a generic term. The first one was created in 1927 and they are now widely available to consumers. You can even buy one at Walmart.
If the reading on the Breathalyzer is high enough (.08 or higher if you are 21 or older, from .01 to .08 if you are too young to legally drink) it may be used as evidence by a police officer to make an arrest for drunk driving (in addition to other facts like appearance, actions and conversation while speaking to the officer, ability to perform a sobriety test and how the person was driving the vehicle).
There are many possible issues that may make the device inaccurate and provide a basis for challenging the Breathalyzer result in court,
- It may need to be calibrated properly,
- Substances with a similar chemistry as alcohol may create a false positive,
- Dieters and diabetics may have a higher amount of acetone in their bodies which can show up as alcohol, and
- It may measure alcohol in the mouth, throat or stomach – not the blood stream.
If pulled over, you cannot be forced to take a Breathalyzer test. However, if you refuse, there will be consequences. Anyone driving in Pennsylvania is deemed to have given an implied consent to give a breath, blood, or urine test for the purpose of determining if they were driving under the influence of drugs or alcohol. If a police officer has reasonable grounds to believe you’re driving drunk, that officer can order you to take a Breathalyzer test.
You can refuse (unless you were driving on a license that was already suspended because of an alcohol related offense, or if you were involved in an accident where someone was seriously injured or killed, then you will be subjected to one type of test or another), but if you do,
- Your driver’s license will be automatically suspended for up to 18 months,
- If you are convicted of the DUI, you also face more severe penalties due to your refusal to take the test. You could be charged with a highest rate DUI, no matter your blood alcohol content and face automatic prison time, and
- The fact that you refused to take the test may be introduced as evidence in your DUI trial. A jury may consider your refusal, maybe not positively.
So you can refuse Breathalyzer in Pennsylvania. But if you do, you face a license suspension, automatic jail time, and an unsympathetic jury.
If you consent to the test, you have the right to additional tests taken by a medical professional of your choice. All of these tests can be used in court, whether they’re in your favor or not.
If you’ve been arrested for a DUI offense, that doesn’t mean you will be convicted. There may be valid defenses to the charge, based on problems with the Breathalyzer, the actions of the officer and the circumstances of the arrest. Contact us so we can discuss your case and your options.