5 Options for DUI Defense in the Face of a Positive Breathalyzer Result
Whether you’re facing a first-time DUI charge or a DUI as a commercial driver’s license holder, the consequences of a conviction are serious. DUI penalties in Virginia depend on how many DUI offenses are on your record and the facts of your case, but they can include jail time, loss of driving privileges, and fines.
If you failed a breathalyzer test, you might think your case is open and shut—and not in your favor. However, that’s not the case; numerous defenses exist for breathalyzer results, including challenging the procedure used for the test, questioning the appropriateness of the equipment, or demonstrating another reason you might end up with a positive result.
1. Challenge the Appropriateness or Maintenance of the Equipment
One option in defending yourself in a case involving a positive breathalyzer test is to challenge the equipment. Virginia law requires that law enforcement agencies use approved devices in conducting these tests. Your defense attorney may be able to show that your test was conducted with a piece of equipment that is not on an approved list.
Even if the equipment is approved, your lawyer can work to show that it was not properly maintained or calibrated. Breathalyzer equipment must be calibrated correctly and maintained in good working order. Otherwise, the results of tests may not be accurate.
2. Ask About Officer Training and Experience
Law enforcement officers must go through training to properly administer breathalyzer tests in the field. A DUI defense attorney may seek records documenting the training and experience of the officers involved in your case. If your attorney can show that an officer didn’t have the appropriate training or that they were not yet very experienced in breathalyzer tests, it could help you create doubt about the accuracy of the test.
3. Look at the Legality of the Stop
If you are asked to take a breathalyzer test after a traffic stop in Virginia, the facts surrounding the stop are pertinent to your case. Officers need reasonable suspicion that you have violated the law or another valid reason to stop you. They also need some reason to ask you to take a breathalyzer test. For example, suppose an officer observes someone weaving on the road in an unsafe manner or smells alcohol when stopping someone for running a red light. In that case, these may be sufficient reasons for the traffic stop and the request for a sobriety test.
However, your attorney may be able to make a case that the traffic stop was not legal. If your lawyer can create an argument that the police officer didn’t have a “reasonable, articulable suspicion” for the DUI stop, the entire case might be dismissed.
4. Challenge the Procedure for the Test
Law enforcement officers must follow specific steps when administering field sobriety and breathalyzer tests. If you can show that the procedure wasn’t followed, it can cast doubt on test results or even allow those results to be thrown out of your case.
Your lawyer may ask you questions about what happened at the scene. Even small details may help with your case, so it’s essential to answer the questions as thoroughly and honestly as possible. Your attorney may also request copies of video of the scene, such as dash cam footage, so they can piece together what process was used. This evidence may help build a case demonstrating that the procedure wasn’t followed appropriately.
5. Argue Another Reason for a Positive Result
False positives do sometimes occur on breathalyzer tests. You can blow a blood alcohol content level that indicates you are driving while intoxicated, even if you haven’t had anything to drink in days or ever. Some factors that can impact a breathalyzer result and potentially result in a false positive include:
- Having used mouthwash or another product that contains alcohol shortly before the test was administered
- Taking certain medications or using an asthma inhaler
- Certain types of medical conditions, including diabetes
- Low-carb diets that cause someone to be in ketosis
- Heavy chemical fumes in the environment where the test was administered
If one of these factors may have impacted test results, your lawyer will work to create a narrative that supports this argument. That might include gathering evidence to prove you have a medical condition or hiring an expert witness to discuss the likelihood of something else causing the positive breathalyzer result.
Work With a DUI Defense Attorney
Facing a DUI charge alone can be frightening and isn’t necessary. Instead, consider working with an experienced DUI defense legal team. Having attorneys on your side who are well-versed in Virginia laws and criminal courts—and who have worked on many DUI cases before—provides peace of mind and confidence in your chances of a more appealing outcome.
The legal team at The Law Office of Scott C. Nolan works hard to protect the interests of clients and ensure every client understands their options for a solid defense. Even if you have failed a breathalyzer test, we can help with your DUI case. Find out more about your options for DUI defense by calling The Law Office of Scott C. Nolan at 703-688-9236.