HOW DUI LAWYERS GET THE BREATHALYZER THROWN OUT

In many DUI cases, the breath test results can be the most damning piece of evidence against you. The legal limit in Washington State is .08 blood alcohol content (BAC). Let's say you get pulled over, the police officer smells alcohol on your breath, you refuse to take the field sobriety test, and the officer decides to arrest you for DUI. (There is a probable cause and Fourth Amendment search and seizure issue here, but that is another topic). Once you are at the police station, you sit down for 10 minutes while the cop who arrested you walks in and out of the room and fills out paper work. After 10 minutes, the cop has you blow into the BAC Verifier DataMaster. You provide the breath sample and the machine prints out a ticket indicating a BAC of .09. The cop has you blow a second time and the machine prints out a ticket indicating a BAC of .15.

At first blush, you may think that you have no chance of winning this case, but there are a number of methods DUI lawyers have at their disposal in getting the breath test results thrown out of court. First of all, when two breath samples are taken, the prosecutor must use the result indicating the lower BAC. In this case, it would be .09, not .15.

But .09 is still over the legal limit. You still need to get the breath test thrown out to have the best chance of beating the case. In Washington, the person who gives you the breath test must be certified by the State Toxicologist. If the officer is not certified or the certification is expired, the breath test results will be thrown out. Also, the breath test machine itself must be certified by the State Toxicologist. Otherwise, the breath test will be thrown out.

In Washington, the police are required by law to observe a person continuously for a period of no less than 15 minutes prior to giving the person the breath test. This is to ensure that nothing goes in your mouth that may affect the breath test results. In the above scenario, the officer did not observe you continuously; he was walking in and out of the room and filling out paperwork. Furthermore, the observation period here was only 10 minutes. The results here would be thrown out by showing that the officer did not observe you continuously and because he did not observe you for the full 15 minutes required by law.

The police are required to take two breath samples in order for the breath test to be admissible in court. If they take only one sample, it will not come in as evidence against you. In addition the two samples cannot be too far off from each other. There is a formula for determining how far off they can be. In the above scenario, .09 and .15 are too far off from each other for this breath test to be admissible; it would be thrown out of court.

The police must follow the procedure set forth in the Washington Administrative Code when giving you a breath test. First, the officer must clear the machine and get a reading of 0.000. The officer must then use a simulator solution with a known amount of ethyl alcohol to test the machine. After the simulator solution is run through the machine, the officer must clear the machine and get a reading of 0.000 before taking the first breath sample. This procedure must be repeated a second time to get the second breath sample. If the prosecutor cannot prove that these procedures were followed, the breath test will be thrown out of court.

Also, under the Washington Administrative Code, the simulator solution that is used in between breath samples must be certified by the State Toxicologist. The Code sets forth the temperature at which the simulator solution is to be kept. The thermometers that are used to measure the temperature of the simulator solution must also be certified by the State Toxicologist. If not, the breath test will be thrown out of court.

The above rules provide examples of just a few of the many ways DUI lawyers use to challenge breath tests and keep them from coming into court as evidence against you. The breath test is often the strongest evidence the prosecutor has against you, and if it gets thrown out, the prosecutor often has no case. Do not think that just because you blow into the machine and get a reading of .08 or above that you are doomed. There are numerous ways DUI lawyers use to challenge the validity of the breath test, depending on the circumstances and the specific facts of your case.