The Law Office of James Davis, P.A.

A POSITIVE BREATHALYZER TEST: POSSIBLE DEFENSES

In Florida, as in all other states, driving with a Blood Alcohol Content (BAC) of 0.08 or greater is illegal. If law enforcement stops a driver on suspicion of Driving Under the Influence (DUI), one common test they administer is a Breathalyzer. When you drink, the alcohol in your blood stream flows through your lungs and exits your body when you breathe out. The Breathalyzer is a machine that you breathe into that measures the amount of alcohol in your breath. The amount registered on the machine is then mathematically calculated to determine a BAC.

If your BAC was more than 0.08 as determined by a Breathalyzer test, you may think there is no hope. But do not despair. There are challenges that can be made to the validity of the test and there may be the proverbial light at the end of the tunnel for you.

Challenges to the Way in Which the Test Was Administered

Breathalyzer tests cannot just be administered at any time by any law enforcement. If certain requirements are not met, the test may be declared invalid and the results inadmissible against you. Specific challenges you can make include:

  • The machine itself was improperly calibrated and maintained. Law enforcement must keep maintenance and calibration records on each specific Breathalyzer. A Criminal Defense Lawyer in Jacksonville can subpoena the records and see if there are any problems with the specific machine that was used for your test.
  • Not all law enforcement officers are authorized to administer Breathalyzer tests. The defense attorney will subpoena the records to see if the officer who administered the test was properly trained and certified. If not, the test may be deemed invalid.
  • There are rules about how the test was administered. Even if the machine was properly maintained and calibrated, and the law enforcement officer who administered the test was properly trained, the test may still have been administered improperly.

Breathalyzers and False Positives

The administering officer must observe you for 20 minutes before administering the test to be sure you have not taken any substance by mouth: not a cough drop, not a breath mint, no chewing gum and no burping or vomiting. If any of these things occurred within 20 minutes of the test, the test is invalid.

Some medical conditions and even certain diets may result in a false positive, including but not limited to:

  • Diabetics, those with kidney or liver disease or any other person having an episode of hypoglycemia.
  • Taking cough syrup that contains alcohol.
  • Spraying breath spray in your mouth that contains alcohol.
  • Numbing spray or gel used for a toothache.
  • A diet like the well-known Atkins diet which is high-protein and low carbohydrate. The body produces ketones which are released through the breath and Breathalyzers mistake ketones for alcohol, creating a false positive.
  • Even using a hand sanitizer containing alcohol may result in a false positive.

When in need of a criminal defense lawyer residents can rely on the Law Office of James Davis, P.A. to provide them the best defense possible.

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