Insufficient Breath Samples

It can be stressful and intimidating to be charged with a DUI. You may assume that because you submitted to a breath test, you are doomed. However, you should not assume that a DUI breath test is valid or that it can’t be challenged. There are a number of different mistakes that could result in a breath test not accurately reflecting your blood alcohol concentration. These could include a medical condition, a failure to follow breath testing procedures or residual mouth alcohol. One issue that may come up is insufficient breath samples. If you are concerned about the outcome of a breath test, you should discuss your situation with experienced Tempe DUI defense attorney James E. Novak. Mr. Novak has years of experience defending clients, but he also has experience as a former prosecutor that he uses to develop strong defense strategies for his clients.

When you consume alcohol, it enters your stomach and small intestine, and is absorbed into your blood. It is then carried through your body and into your lungs and brain. When you breathe, you exhale breath that contains alcohol. A breath alcohol test will measure how much alcohol is in the air you exhale. That measurement is used to create an estimate of your blood alcohol concentration. In most cases, your blood alcohol concentration will be highest an hour after you drink. If you have a BAC of .08 or higher, you can be charged with a DUI.

In order for a breath test to provide accurate results, it requires breath samples that have a certain volume taken over a specified period of time. When the sample is not taken for that specified period of time or hasn’t reached the right volume, it should not be treated as accurate by the court.

Sometimes, multiple attempts are made to take an accurate sample, but an appropriate, useable sample is not generated. The law enforcement officer may be alerted that the proper volume of breath wasn’t given. The sample can be terminated, and the test may be administered again. However, if you seem to be intentionally failing to produce an adequate breath sample to foil law enforcement officers, the officer may note you refused the test.

Two types of breath tests may be used when you are believed to be driving under the influence.

The first type of breath test is a portable breath test, which is a handheld device that is used during the stop. Its purpose is to figure out if you are under the influence of alcohol or drugs, but it is only an early screening tool used to establish probable cause to believe you’ve been drinking. It needs to be followed up with use of a formal breathalyzer test, the results of which could be admitted as evidence at a DUI trial.

When a breath sample taken by the portable breath test is insufficient, there may not have been probable cause to arrest you for DUI in or around Tempe. If that is the case, evidence obtained subsequent to your arrest, including the more formal breath test results, may be deemed inadmissible and that can allow our lawyers to show that you should not be convicted. Other factors can also render the sample flawed, such as use of a mouthwash or breath-freshening spray that suggests that your blood alcohol concentration is higher than it was. An experienced lawyer can make sure that all possible angles can be explored so that breath test results that are not reliable can be excluded.

Arizona Revised Statute section 28-1323 provides that the results of a breath test administered to determine your alcohol concentration can be admitted as evidence in any trial or proceeding so long as it meets certain foundational requirements. Among other things, the test must be performed on a quantitative breath testing device that either the department of public safety or the department of health services has approved. The breath sample obtained with the device needs to be an appropriate volume to secure a reliable reading, but this assumes that the device itself is approved.

If you suspect that the breath evidence against you in connection with DUI charges may be flawed, it is important to consult experienced Tempe defense lawyer James E. Novak. He develops the strongest available strategies for those accused of DUIs in Phoenix, as well as Gilbert, Chandler, Mesa, and Maricopa County. Contact him at (480) 413-1499 or complete our online form.