speeding ticket

Breathalyzer Use

DUI / DWI laws are increasing in severity in almost all states across the country, as there always seems to be a hard core minority of drivers who refuse to obey the existing legislation and continue to endanger property and lives with their behavior. One tool that law enforcement officers routinely use to detect alcohol levels in a driver is the breathalyzer, but there is often a lot of confusion amongst the general public about what is admissible evidence and what happens if they refuse a breathalyzer test.

What is a breathalyzer?

A breathalyzer is basically any sort of instrument that can detect alcohol in somebody’s breath or bloodstream. However, the portable devices which are the ones most often encountered by the average driver are not sufficiently accurate to detect the actual percentage alcohol content and are not usually admissible in court except to show evidence that alcohol in some amount was or was not present. There are many reasons for this inaccuracy, including defective devices, an inability by the relevant officer to use them properly; the time allowed before the device was used for testing and other factors that could affect the reading such as vomiting or belching before use by the driver.

The only breathalyzer information which can be used by a court is that provided by the standard desk machine used in a police station or a blood or other type of chemical test. The desk top machine will give a print out of the BAC and can then be used in court as evidence. These machines are more correctly called intoxilyzers, rather than breathalyzers. The tests are, of course, not immune from error and some drivers think they should refuse their use as they do not trust their inherent accuracy. Equally, some people point blank refuse to take any tests which are being administered by a government agency.

What happens if I refuse to use a breathalyzer or intoxylizer?

Generally speaking, any prosecutor is likely to assume that if you have refused an alcohol test, then this will be a presumption of guilt. This assumption is based on the premise that a genuinely innocent person, i.e. anybody with significantly less than the now uniform 0.08% BAC level, which is the maximum allowed in all states would not refuse a test. In addition to this, a refusal to take a test will attract an additional charge and will ultimately increase the penalties imposed if the DUI charge holds in court.

There are some significant riders to this. The police officer who has asked you to take a breathalyzer test will normally present a form for you to sign or read out a standard statement which you must agree to if you want to refuse the test. Basically, this is a statement which has outlined your right to refuse a test and that you have done this under your own free will. The police must be able to prove that you refused a test and cannot just claim that this has happened verbally.

You have a right to contact a lawyer before taking a test for alcohol

In any situation in which you are charged with a DUI /DWI offense, before you take a breathalyzer test, you have the right to call a lawyer. The means for you to make a phone call to a lawyer must be supplied and adequate time for you to locate a lawyer must also be provided as well.

The only defense that your lawyer might be able to make in the case that you refuse a breathalyzer test is if you were not given the standard form or statement to sign or if you have not had adequate opportunity to contact a lawyer.




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