Challenging the Breath Test

Challenging the Breath Test

Chicago DUI Lawyer

Many DUI charges are filed based upon a failed breath test. Although there are three different methods law enforcement will use to test for the presence and amount of alcohol and drugs in a driver's system, a breath test is typically the most frequently used method.

There are two primary reasons a driver will need to consult with an attorney after taking a breath test. A defense attorney can assist a driver who has "failed" or "refused" a breath test. Failing a breath test would mean that the driver showed a result of .08% or greater, or .02% or greater if the driver is under the age of 21. A driver may also face license suspension and possibly other penalties if he or she refuses to take a breath test after an arrest for suspected DUI. Under Implied Consent laws, drivers are considered to have given consent to alcohol testing after a drunk driving arrest (to obtain your driver's license in Illinois you sign a paper that includes a clause to this extent).

Arguments to Contest the Breath Test

Although you may have been accused of failing a breath test, there are ways that an experienced lawyer may still be able to help you avoid a conviction. This may include bringing about such defenses as:

  • The breath test operator was not licensed. In Illinois, a breath test operator must have a valid license for test results to be admissible.
  • The Breathalyzer machine malfunctioned. If a breath test device is improperly calibrated or maintained, it may malfunction.
  • The breath test device used was not listed on the Federal List of Approved Breath Evidential Instruments.
  • The breath test was not administered properly.
  • The test was carried out with a portable breath test device, the results of which are inadmissible as evidence in court.
  • Breath test results are invalid due to an interfering substance – another substance that contains alcohol (cough syrup, asthma medicine, etc.) that may have led to a false positive.

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