CHALLENGING THE BREATHALYZER TEST RESULTS
In order to properly defend against a charge of DUI, an attorney must be familiar with
the methods used by the police to obtain blood alcohol information from his client. The Law Offices of Steven P. McCollum,
P.C. has extensive experience in challenging Breathalyzer test results.In most cases where the offense of Driving Under the
Influence of Alcohol (DUI) has been charged, the prosecution will attempt to prove that the defendant's blood alcohol concentration
at the time of the offense was at or above a statutory limit. In Illinois, that statutory limit is .08. Therefore, a police
officer who arrests an alleged drunk driver will attempt to obtain a sample of the breath, blood, or urine of the person arrested.
A Breathalyzer (or breath test) is the usual method used
by police. In Illinois and most Lake County cities and villages, police will try to have the driver take a portable breath
test (PBT) at the scene of the arrest and will also have the person take a breathalyzer test in the police station. The PBT
is limited as to when it can be used in court and is generally not admissable as evidence during the trial of the case.
However, the Breathalyzer administered in the police station is the test which may be admissable as evidence at
trial to prove the offense of Driving Under the Influence of Alcohol.
To successfully defend a person against a charge of DUI, a defense lawyer must have extensive experience concerning
the use of portable breath tests, Breathalyzers, and laboratory testing of samples submitted by police. With sixteen years
of prosecutorial experience and over eleven years of experience as a defense lawyer defending people charged with DUI, Reckless
Homicide and other offenses where Breathalyzer tests are utilized by the police, Steve McCollum has the background and expertise
needed for a successful defense of your case.
Many factors
affect the reliability of breath tests, including the temperature, the type of machine used, the presence of mouth appliances,
the atmospheric pressure, activity just prior to the test, the diet that the person taking the test has been following (see
below), and other factors. These factors can lead to questionable results. A good defense attorney will know how to challenge
the police officer’s testimony and will also be able to find and present expert witnesses concerning the scientific
inaccuracy of the Breathalyzer test result in your case based on these variables.
The following is from an article published about an airline pilot who was initially accused of attempting
to fly a plane while under the influence. The initial breath test had shown a high level of alcohol in his blood:
April 7, 2007:
LONDON, April 7 (Reuters) - An airline pilot arrested just before take-off on suspicion of being over the alcohol
limit was not drunk and the diet he was on may have been to blame for the confusion, airline Virgin Atlantic said on Saturday.
Police arrested the 47-year-old pilot of a New York-bound Virgin Atlantic [VA.UL] plane at London’s
Heathrow airport last Saturday after being tipped off by security staff who thought the pilot had been drinking.
While an initial breath test showed the pilot to be over the alcohol limit, police told the pilot on
Saturday that a blood test was negative, Virgin Atlantic spokesman Paul Charles said.
“The result showed the amount of alcohol in the blood was consistent with that of a non-drinker,” he said.
No charges will be brought against the British pilot, whose name was not released. The pilot, suspended
after the incident, will be able to resume his duties immediately, the airline said.
“He is elated with the news and is keen to resume his flying career as soon as possible,” Charles said.
Charles said a diet the pilot had been on may have been the cause of the mistake. A laboratory that
carried out a blood test on the pilot said some diets led the body to generate increased levels of acetone, he said. “It
would smell like alcohol on someone’s breath,” he said.
By Allen Trapp (all rights reserved by Reuters)
The above article illustrates that there are many factors that must be considered to
enable a competent defense of a drunk driving charge. It must also include checking whether the police have
complied with the strict guidelines laid out by the Department of State Police for testing. This includes a review
of the log book of the Breathalyzer machine used, and an examination of the qualifications of the Breathalyzer operator.
At the Law Offices of Steven P. McCollum, PC, this is
done in every Driving Under the Influence of Alcohol case we defend where a Breathalyzer has been used.
Breath testing machines can be inaccurate when the person being tested
has been recently exposed to fumes, such as lacquer, paint, gasoline, or dry cleaning fluids. As noted in the case of the
airline pilot (above), diet can effect some breath test results since the acetone created in a persons breath from low carbohydrate
diets can be falsely read by the breath machine as alcohol.
In Illinois and the Waukegan DUI court, a defense attorney can challenge a breath test result when the arresting officer
fails to give the required implied consent warning. A Motion in Limine by an experienced, competent defense lawyer can result
in the court excluding the use of the Breathalyzer test results, thereby requiring the prosecutor to prove his or her case
with other evidence.
At the Law Offices of Steven P.
McCollum, P.C. a systematic method of defending clients charged with DUI is used that takes into account the many
factors that can lead to a finding of not guilty. Far too many attorneys don’t take the necessary steps to ensure
that the prosecutor has a case before looking to make a plea agreement. This is a disservice to their clients. As an attorney
with experience as both a prosecutor and as a defense lawyer, Steve McCollum is committed to finding the means necessary to
help you challenge the Breathalyzer or other scientific evidence against you in your DUI case.
