Challenging Breath Tests in Georgia

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Can a Breathalyzer Be Wrong? 

The short answer is yes. When a citizen is accused of driving under the influence, there is not always a hard line between guilt and innocence. The truth is, many factors and variables play a role in this complex charge - some of which have the potential to skew test results, making an innocent person appear guilty. The accused's breath sample may have been collected under less than ideal conditions. The test administrator may make mistakes, regardless of skill level. The unique traits and conditions of the test subject (size, body temperature, medications taken, diet, recently consumed foods) may interfere with a clear and objective result. An Atlanta DUI attorney may argue that a breathalyzer result of .08 was erroneous and/or not collected under ideal conditions, with the potential of invalidating that result.

Georgia law enforcement have employed the Intoxilyzer 9000 since 2015. After a series of tests, the Georgia Bureau of Investigation concluded that the Intoxilyzer 9000 is accurate and serviceable in determining the blood alcohol content of impaired individuals. Under the doctrine of implied consent, an individual suspected of driving under the influence has already given express permission to give a sample of blood or breath, as needed, in order to determine their blood alcohol content.

Causes of Breathalyzer Error

Queries into breathalyzer accuracy often pose the question, "Is there anything that can 'set off' or 'throw off' a breathalyzer?" There are in fact a number of factors that can lead to a faulty or questionable breathalyzer reading. Generally speaking, a Atlanta DUI lawyer will cast a critical eye on either police procedural error or the condition of the test subject to challenge a breath test result. Most factors that can cause inaccurate breathalyzer readings fall under one these two umbrellas.

Challenging Breath Tests with Police Procedural Error

Even seasoned officers still make mistakes. Many aspects of a DUI case, unrelated to the breathalyzer test, can be subject to police error and consequently can be challenged in court. These include but are not limited to:

  • failure to use breathalyzer equipment properly and in accordance with policy
  • failure to follow manufacturer's guidelines
  • failure to explain the right of the subject to provide an alternate sample
  • incorrectly filled breathalyzer forms
  • failure to give subject prescribed warnings should they refuse to give a blood or breath sample
  • failure to seek out an alternative test when plain doubts are raised about the breath sample
  • not ensuring test subject has not consumed any alcohol in the last 15 to 20 minutes
  • not instructing test subject to dispose of gum or chewing tobacco
  • failure to note subject's use of relevant medications
  • Improperly cleaned Intoxilyzer mouthpiece contaminated with alcohol from another subject.

Challenging Breath Tests with Test Subject's Condition

A number of factors can effectively contaminate a breath test result, with the potential of leading to a false positive.

One such factor, and perhaps the most common, is residual mouth alcohol. This is a problem not only for breathalyzer tests performed at the scene of a suspected DUI but also for ignition interlock devices. Mouthwashes, cough syrups and breath sprays have been known to distort breathalyzer readings. According to the U.S. Department of Transportation and the National Highway Traffic Safety Administration, some alcohol remains in the mouth after using one of these items. A breath sample collected soon after use will yield a higher blood alcohol reading than the individual's actual blood alcohol content. Chewing gum has also been known to retain alcohol; this is why officers must instruct test subjects to dispose of it, in the case they are chewing any. Certain asthma inhalers contain alcohol. It is critical that the BAC reading indicates the true blood alcohol content of the subject, without interference from residual mouth alcohol. Else, the result may be invalid.

Certain medications and medical conditions can affect breathalyzer results. For example, the asthma medications albuterol, salmeterol, and budesonide have been known to yield a false positive. In addition, tests have shown that the acetone levels of diabetics are hundreds if not thousands of times higher than non-diabetics. To determine blood alcohol content, breathalyzers detect ethyl alcohol in their breath, however, they cannot distinguish between acetone and ethyl alcohol. Therefore, conditions that create high acetone levels can lead to a faulty breathalyzer reading. Gastroesophageal reflux disease (GERD) is another medical condition whose sufferers are at risk for false positives. The condition causes undigested materials, including alcohol, to leak back into the esophagus. This could affect the breathalyzer reading of those with GERD.

Diet can play a contributing role in unreliable breath test results. Research has shown that high fat, low carb diets can increase acetone levels in the breath as well. Even the simple act of burping can cause stomach gas to rise with the potential for undigested alcohol in the system to create a false positive.

Although less common, a person's profession, if it entails some degree of acetone exposure, can similarly interfere. This is more common among painters but is worth being cognizant of, for the sake of accused individuals.

Challenging DUI Breath Tests in Georgia DUIs

Nothing is black and white in DUI cases, and guilt cannot be exclusively correlated to a number. Given all the nuances of DUIs, it is critical to remember that an arrest or positive breathalyzer reading does not mean the accused is guilty. If you or a loved one has been arrested for driving under the influence of alcohol, do not hesitate to seek out legal counsel. Backed by over 20 years of experience defending Georgians against DUI charges, Georgia DUI attorney Richard Lawson is prepared to fight for your driver's license and your rights in court. Time is of the essence in DUI cases, so do not hesitate to contact us. Our Atlanta DUI Defense Lawyers are here to help you when you need us more. We are available 24 hours a day, 7 days a week.

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