In this section of Total DUI, learn whether you:
- Can Be Convicted for DUI Based on a Breath Test?;
- Can Challenge Your Breath Test Result?;
- Must Submit to a Breath Test?; and how to
- Get a Free DUI Case Evaluation and Learn More about Breathalyzers.
Can You be Convicted for DUI Based on a Breath Test?
It is a crime in every state to operate a motor vehicle with a blood alcohol content (BAC) of 0.08 percent or greater. In most states, a breath test can be used as presumptive evidence in your trial for driving under the influence (DUI). For every crime, the burden of proof is on the state, except when evidence is considered to be presumptive. When evidence is presumptive, the burden of proof shifts to you. You are required to disprove the evidence against you. In DUI cases, a breath test showing a BAC of 0.08 or greater is presumptive evidence of DUI.
Generally, the State uses a breath test to estimate your blood alcohol content. A breath test measures the concentration of alcohol in your breath to estimate your BAC. The conversion from breath alcohol concentration to BAC assumes that you're an average person. The breath test conversion does not take into account whether you're a man or woman, your height and weight, what you've eaten, or how quickly your body metabolizes alcohol compared to an average person.
Breath tests are the most common and powerful form of evidence in DUI cases nowadays, and breathalyzers are even becoming apparent at high school proms to prevent underage drinking and driving. With that said, there are some top things you should know about breathalyzers and BAC, and the following questions provide some revealing answers to the most common questions and myths about breath tests.
Can You Challenge Your Breath Test Result?
Yes, and in fact, more and more people are challenging BAC results from breath tests. In order to rebut your breath test result, you can attempt to show that you're not the average person and that the standard formulas for conversion from breath alcohol concentration to BAC do not apply to you. You can introduce evidence that you've recently been exposed to chemical compounds containing alcohol that increased your breath alcohol concentration without raising your blood alcohol content. You could attempt to show that your breath sample was not handled correctly, like in a recent Florida intoxilyzer case, or argue that the breathalyzer was not functioning properly, like in a recent DUI case in New Jersey.
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In most states, you can demand an independent test of your breath sample. The state would supply a second sample of your breath to an independent lab of your choosing. If the independent lab's test is greatly different from your original breath test, you may have sufficient evidence to rebut the presumption of DUI. If the state has failed to save or mishandled the second breath sample, you may be able to rebut the presumption.
Must You Submit to a Breath Test?
In most states, your driver's license will be automatically suspended if you refuse to submit to a breath test when asked. In some states, a refusal to submit to a breath test can be used as presumptive evidence against you, just like a test estimating a BAC at or above 0.08. With that said, many states like Rhode Island and South Carolina have already made or are trying to make the penalties for breathalyzer refusal tougher.
Generally, you can request a blood test in place of a breath test. Of course, requesting a blood test will only be helpful if you believe that a breath test would estimate your blood alcohol content to be higher than it really is. In the some cases, some states allow for the forcible drawing of your blood for a BAC test, particularly following an accident. There is also a growing trend toward obtaining warrants to draw blood in refusal cases.
Get a Free DUI Case Evaluation and Learn More about Breathalyzers
If you've been charged with DUI and you submitted to a breath test, you may still be able to challenge the results of the test. You need to understand how a breath test can be used as evidence to convict you of DUI.
Simply fill out our free online DUI case evaluation form or call 1 (877) 349-1311 to schedule a free consultation with a local DUI lawyer who can provide more information about breathalyzers and BAC and related subjects like field sobriety tests and ignition interlock devices.
Interested in learning more about breath tests in the meantime? Simply check out our More Breathalyzers Information page for must-have information on breath tests and in-depth articles detailing the latest news and controversies surrounding specific breathalyzer machines.