Breath Tests

It is very likely that a police officer who pulls someone over for suspected driving under the influence will ask that person to take a chemical test that allows him to determine their blood alcohol content. A sample of the driver’s breath is one of the most common of the tests.

Police officers and state troopers can use either a portable device or a stationary one to test someone’s breath. They will also read a DL – 26 form, also known as the “O’Connell warning,” which is an implied consent statement, when they ask a driver to submit to a BAC test. It is very important to understand that these devices have a lot of problems. Even so, if a person who agrees to the test has a blood alcohol content of 0.08 or higher, he will be charged with DUI. Mistakes made by the operators of the machines and the problems associated with the devices can often lead to the dismissal of drunk driving charges.

Pennsylvania Breath Tests and How They Work

Generally, police will use one or both of two types of breath tests:

Portable or preliminary breath test, also known as PBT: these are used during roadside testing of suspected drunk drivers. A few of the most commonly used ones include Intoxilyzer 500 devices, AlcoCheck, and BACmaster devices. Law enforcement officers will request the suspected drunk driver to blow into the portable device. The results may be used as probable cause to require the driver to submit to additional testing. The portable breath test devices display results on an LCD screen but do not print them out. The results are not admissible in court, and the driver has the right to refuse to submit to one.

Evidential or stationary breath test, also known as EBT: Stationary breath tests are larger machines and are located at police stations. A suspected drunk driver will face serious penalties for refusing to take one. PennDOT regulations require more than one sample of someone’s breath on one of these machines. This will also make sure that they get reliable samples. The results of these tests can be used in court. They are printed out. The Alco test, DataMaster, and Breathalyzer models are examples of the kinds of machines approved for use in Pennsylvania.

Errors in Breath Test Machines

Though devices that analyze breath for blood alcohol content are assumed to be accurate, there are any number of problems with the machines that can cause false positive results. The following is a list of some of the most common issues:

  • Software glitches or bugs
  • Environmental factors
  • Electromagnetic interference, also known as EMI, or radiofrequency interference, also known as RFI
  • Machine’s assumed blood breath partition ratio causes overestimation of BAC
  • Improper maintenance
  • Non-ethyl alcohol substances included in machine’s test results

Breath Test Operator Mistakes

Sometimes, the breath test devices work properly, but the DUI cases that result are dismissed because the people performing the tests made mistakes or oversights. PennDOT has instituted specific requirements for how breath test should proceed. Any deviation from those procedures can result in blood alcohol content being disallowed as evidence, which means the prosecutor is not able to prove DUI.

Below is a list of mistakes made by officials, including police officers, that conduct breath tests. This is not a comprehensive list.

  • Administration of the breath test by a police officer not certified to do so
  • Test performed when the alleged offender was in the peak absorption period
  • There is a big difference between BAC samples
  • Samples of the driver’s breath were not taken within the set time period
  • Officers failed to conduct an observation period
  • Lack of proper calibration of the breath test machine

Breath Test Machines in DUI Cases

There are three machines used across the Commonwealth of Pennsylvania to test a person’s breath to determine if they have been driving under the influence of alcohol: the Intoxilyzer 8000, the DataMaster, and the Intoxilyzer 5000. Lawyers who handle Driving Under the Influence cases need to be familiar with each one of them. Each brand and model of machine is operated differently than the others, and is programmed in a different way. Attorneys need to be able to question police officers, state troopers, and others who operate the machines as to their methods and qualifications in order to successfully defend their clients.

A well-trained DUI attorney will look at a couple different things when defending a client against charges that he or she was driving under the influence, based on breath tests. The first is the calibration of the breath test machine that was used. When was the calibration last completed? Who calibrated it? Was the person trained to do so? Was the machine calibrated properly?

The second thing a DUI attorney will look at is the machine operator. Is his license still good, or has it expired? Has he kept up with ongoing training in the use of and advances made on the machine? Did he operate the machine properly when he tested the individual? This is probably the most important thing for an attorney to look at in these cases. Operator error is the most likely thing to get a case dropped.

The good news for DUI defendants is that many breath test machines used in Pennsylvania have become defective. A State Supreme Court case a few years ago ruled that they were ineffective, so, if you have been given a breath test, it will be relatively easy to get the Blood Alcohol Concentration readings from the machine suppressed, or the case thrown out altogether. It is more likely, though, that a blood test will be used than a breath test.

Have you been stopped for Driving Under the Influence of alcohol and been given a breath test? Are you looking for an experienced Pittsburgh DUI attorney who has the training and knowledge to understand how breath test machines work? If so, look no further. The Logue Criminal Defense team has the training in and understanding of breath test machines and DUI defense that you need to help you beat your charges.

Logue Law Group serves Pittsburgh, PA, West Virginia, and Ohio. Call us today for an initial consultation, free of charge: (412) 612-2210 or (412) 389-0805. Or, you may contact \us online.

Don’t wait to call! Driving Under the Influence charges have very serious consequences, and unreliable, improperly utilized machines and poorly trained machine operators can come between you and your freedom. The longer you wait to hire an attorney, the more difficult it becomes for you to beat your charges and get them dismissed, or at least, reduced. Sean Logue and his associates at Logue Law Group are waiting to help you get your life back by defending you against your DUI charges and the results of breath tests. Call now!

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