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Failed Breathalyzer
When you have been pulled over and are suspected of drunk driving, you could be asked to provide a breath sample. Misconceptions exist about what your rights are and what these types of tests are. Misunderstandings can lead to more problems, especially if you are facing OUI charges in Massachusetts
Attorney Dunn helps clients understand all aspects of their Massachusetts drunk driving case. We believe informed clients make better decisions about how to proceed. If you have questions or want to speak to an OUI lawyer in Massachusetts, call us now at 617-504-4881 to get your free consultation.
What Are Breath Tests?
Police officers use breath tests in roadside testing and following arrests to help determine whether an alleged drunk driver was under the influence of alcohol while operating a vehicle. These tests can be used for operators of cars and trucks as well as operators of motorcycles, boats, and other vehicles as defined by their respective state.
There are two different types of breath tests: the portable, preliminary breath test (PBT) (also known as preliminary alcohol screenings) and the breathalyzer. Both "types" are often simply called "breath tests," and that's where the confusion comes in. By referring to both as breath tests, people assume they are the same thing, but they are not. Each is administered for different reasons and purposes.
Preliminary Breath Tests
A preliminary breath test or alcohol screening is a breath alcohol test conducted using a portable breath machine in the field, meaning on the side of the road during a traffic stop or OUI investigation. The PBT presumes to measure a person's breath alcohol content (BrAC). Portable breath test results are almost always inadmissible in court because they are unreliable. You would want to speak to a drunk driving attorney, however, regarding PBT results and admissibility specifically in your case.
PBTs are administered when a police officer has reasonable grounds to believe you are unlawfully driving under the influence. Maybe your speech was slurred or your eyes were bloodshot, and so the officer asks to take a breath sample. If you fail the PBT, that could be enough probable cause to arrest you for a drunk driving offense. A PBT result can also be used in conjunction with a failed field sobriety test as sufficient probable cause to arrest you.
Breathalyzers
After an arrest for a drunk driving offense, you will be asked to take another test. Typically, this is a chemical test using a breathalyzer. The breathalyzer is not a portable machine and produces results that are more accurate and can be admitted into court as evidence against you. Massachusetts uses only one type of breathalyzer, the Dräger Alcotest 9510 machines that are subject to calibration requirements established by state law.
Before you provide a breath sample via a breathalyzer, the officer should have read the Statutory Rights and Consent form to you. That form should advise you of your rights before officers ask for your consent to submit to a breath test. If this warning was not provided to you prior to a breathalyzer test, your rights may have been violated.
Common Problems with the Breath Tests in Massachusetts
Breath tests using portable machines are known to be unreliable, and that's why they are typically not admissible in court. Breath tests using breathalyzers at the police station, however, are admissible. They, too, can also be unreliable and become inadmissible under certain situations or circumstances.
Problems with breathalyzers can be categorized as those resulting from the testing device or machine, the individual operating the device or the test sample.
Problems with the Breathalyzer Device
- Improper calibration
- Incorrect chemical solutions
- Inappropriate modification
- Faulty programming
- Broken or otherwise not maintained properly
Issues with the Administration of the Test
- Failure to read Statutory Rights
- Improper instructions or methodology
- Failure to follow testing protocols
- Testing performed by an untrained person
Causes of Improper Breathalyzer Test Readings
- Pre-existing conditions or other medical conditions suffered by the test taker
- Medications, foods, or drinks
- Residual alcohol from the test taker's mouth
Breath tests can be challenged. We can file motions to suppress or exclude the results. Sometimes, if successful, this could result in dismissal of the charges or an acquittal.
Five Ways We Challenge OUI Breath Tests in Massachusetts
A breath test is often a substantial part of the prosecution's case involving OUI offenses. For that reason, it is essential to ensure that a breath test was performed correctly and the results are accurate. We have been well trained and have experience in these cases can identify a problem with a breath test and take proper action to suppress it as evidence.
We can take any of the following actions, depending on the specific facts and circumstances of your case:
- Attack the reliability of the breath test. Many reasons exist why we may not be able to rely on the results of a breath test, like a faulty machine, improper administration, or health issues with the test taker.
- Prove the breath device was not properly calibrated. Each state has its respective laws on calibration, but it usually involves a certified forensic analyst and verification of the machine's accuracy.
- Prove device was not properly maintained. Typically, the date and time of repairs and maintenance, as well as the nature and extent of and who performed the maintenance and repairs must be logged.
- Prove there was a lack of training or an operator's error. Police must be trained in order to conduct breath tests. An untrained or uncertified police officer may not properly administer the test.
- Prove records were not properly maintained. Records should be kept to show proper calibration and maintenance, and failure to keep those records updated can be used to prove the device was not properly calibrated or maintained as the law requires.
During the discovery phase of your case, we will obtain the information and evidence we need to support arguments against the breath test's admissibility.
Contact Massachusetts OUI Defense Attorney James Dunn Now
You can have your day in court to challenge OUI charges regardless if you took and failed a breath test or refused one. With the right OUI defense lawyer in Massachusetts, you can be successful. Contact OUI defense attorney James Dunn today by calling us at 617-504-4881 or filling out an online form to get your free consultation.