McCollum Hodgkinson & Nikitas, LLC - Experienced Lake County Illinois Defense Attorneys


Breathalyzer Tests


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.

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.

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Steven P. McCollum
Law Offices of Steven P. McCollum, P.C. 
415 Washington Street
Suite 103
Waukegan, Illinois 60085
(847) 662-2474