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Was that Breathalyzer properly calibrated?

The police pull you over and accuse you of driving while intoxicated. You did have a drink with dinner, but you don't think you're anywhere close to the legal limit.

When the officer gives you the breath test, it says you're at 0.09. You take the test a second time, and it says 0.03.

That alone could be an indication that the Breathalyzer was not calibrated properly before the test was administered. It's impossible for your Blood Alcohol Concentration to actually move that far in such a short time, so you have reason to doubt the results. Experts warn that getting two readings that are not within 0.02 of each other is a red flag.

Other issues that could mean a breath test can't be trusted include:

  • The officer did not perform checks and maintenance of the device on the proper schedule.
  • The specific make and model of the test device doesn't show up on an acceptable devices list.
  • The officer who gave you the test did not get trained or wasn't certified to use it.
  • The officer didn't check to make sure you didn't burp, smoke, vomit, or eat shortly before taking the test.
  • The officer was trained in how to use the test, but did not follow his or her training in some way.

In short, while a breath test is a common device that is often trusted by the authorities, there are numerous ways that it could return results that don't hold up in court and don't support the facts of the case. If you think that this happened during a DWI arrest, be sure you know exactly what legal options you have.

Source: FindLaw, "Breathalyzer Calibration," accessed Jan. 19, 2018

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