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How to Challenge a Breath Test Result

November 13, 2019

By Van Der Veen, Hartshorn, and Levin

You’ve been pulled over for a DUI and have just taken the breath test. The officer informs you that you have blown over 0.08, the legal alcohol limit in Pennsylvania. It’s easy at this point to start assuming the worst, and to think the prosecution will have an open-and-shut case against you. Fortunately, that’s not necessarily true. A Pennsylvania criminal defense will know how to challenge the results of this test to help you retain your freedom. Below are a few ways they will do it.

You Suffer From a Medical Condition

There are some medical conditions, such as gastroesophageal reflux disease (GERD) that causes a person to have more red blood cells and a higher ketone level. Both of these can alter the results of the breath test and make the results read higher. An attorney will use this to raise questions about the breath test that could create reasonable doubt.

You Were Taking Medication

Just as certain medical conditions can skew the results of a breath test, so too, can certain medications. Cough syrup can make the results higher because it contains alcohol. Medications for asthma, pain relievers, and dental medications can also alter the results of a breath test.

The Breathalyzer Device was not Calibrated Properly

Breathalyzer devices are notorious for having calibration that is off, which can alter the results. Police officers have a duty to ensure the breathalyzer device they use is maintained and properly calibrated. They are also responsible for keeping records showing when the device was calibrated. If they cannot provide proof that the device was in good working condition, it can greatly help with your case.

Failing to Testify

The Sixth Amendment to the United States Constitution gives all defendants the right to confront the witnesses against them. This means that if the officer that administers the breath test does not appear in court, your attorney doesn’t have the chance to cross-examine them, which should mean that the results of your breath test will be inadmissible.

Lack of Probable Cause

In order to administer a breath test, or pull you over at all, an officer must have probable cause that you are committing a crime, or that you already have. If they did not have this probable cause, any evidence obtained during the stop or as a result of the stop, is inadmissible.

Your BAC Increased After the Stop

It’s a known fact that your BAC will continue to rise for some time after you have stopped drinking. Pennsylvania law states a person must be observed for 20 consecutive minutes before a breath test is administered. Often law enforcement takes longer than this, so it can be argued that your BAC rose after the stop and that you were not drunk while driving.

Our Pennsylvania Criminal Defense Lawyers Know How to Challenge Tests

If you’ve been arrested for a DUI after you blew higher than 0.08 during a breath test, it’s easy to think the worst. However, our Philadelphia criminal defense attorneys at van der Veen, Hartshorn, Levin & Lindheim know these results don’t always indicate guilt. If you’ve been charged, call us today at (215) 486-0123. Challenging breath test results in just one DUI defense, and we know many more that could help your case.



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