Breath Test

Breath Test

When you have been pulled over and are suspected of drunk driving, you could be asked to provide a breath sample. Misconceptions exist about what your rights are and what these types of tests are. Misunderstandings can lead to more problems, especially if you are facing DWI charges in New Jersey

At Villamor Law Offense, our DWI defense lawyer helps clients understand all aspects of their drunk driving case. We believe informed clients make better decisions about their DWI case. If you have questions or want to speak to a defense lawyer in New Jersey, call us at (888) 538-2111 to schedule a consultation.

What Are Breath Tests?

Police officers use breath tests in roadside testing and following arrests to help determine whether an alleged drunk driver was under the influence of alcohol while operating a vehicle. These tests can be used for operators of cars and trucks as well as operators of motorcycles, boats, and other vehicles as defined by their respective state.

Breathalyzers / Alcotest Machine

After an arrest for a drunk driving offense, you will have to take a breath test. Typically, this is a chemical test using a breathalyzer (Alcotest in NJ). The breathalyzer is not a portable machine and produces results that are more accurate and can be admitted into court as evidence against you. Approved breathalyzer machines are subject to calibration requirements established by state law.

Before you provide breath samples, the officer should have read you a statement regarding your rights and consequences of refusing to provide breath samples. 

Do I Have a Right to Refuse a Breath Test ?

All states have their own variation of implied consent laws. These laws basically say that you implicitly agree to obey the rules of the road when you get a driver's license. As such, you also implicitly agree to any chemical tests (breath, blood, or urine tests) in exchange for the privilege of operating a vehicle in the state. You do not have to be charged and convicted of a drunk driving offense to have your license suspended -- you just need to refuse a breath test.

What's more, in some jurisdictions, your refusal may be used against you in court as evidence that you were drunk driving. If you are convicted, your sentence could include jail time.

Further, if you refuse, the officer may request a warrant to obtain a blood sample. Blood tests are much more reliable and accurate.

If you are charged with DWI or Refusal, you should speak to a drunk driving defense lawyer who regularly handles DWI and Refusal cases.

Common Problems with the Breath Tests in New Jersey

Breath tests using breathalyzers at the police station are usually admissible evidence in court. But they can be unreliable and become inadmissible under certain situations or circumstances.Problems with breathalyzers can be categorized as those resulting from the testing device or machine, the individual operating the device, or the test sample.

Problems with the Breathalyzer Device

Improper calibration

Incorrect chemical solutions

Inappropriate modification

Faulty programming

Broken or otherwise not maintained properly

Issues with the Administration of the Test

Improper instructions or methodology

Failure to follow testing protocols

Testing performed by an untrained person

Causes of Improper Breathalyzer Test Readings

Pre-existing conditions or other medical conditions suffered by the test taker

Medications, foods, or drinks

Residual alcohol from the test taker's mouth

Certain diets, like Keto

Breath tests can be challenged. A criminal defense lawyer can file motions to suppress or exclude the results. Sometimes, if successful, this could result in dismissal of the charges or an acquittal.

Five Ways We Challenge DWI Breath Tests 

A breath test is often a substantial part of the prosecution's case involving DWI offenses. For that reason, it is essential to ensure that a breath test was performed correctly and the results are accurate.DWI defense attorneys who have been well trained and have experience in these cases can identify a problem with a breath test and take proper action to suppress it as evidence.

At Villamor Law Offense, we can take any of the following actions, depending on the specific facts and circumstances of your case:

Attack the reliability of the breath test. Many reasons exist why we may not be able to rely on the results of a breath test, like a faulty machine, improper administration, or health issues with the test taker.

Prove the breath device was not properly calibrated. Each state has its respective laws on calibration, but it usually involves a certified forensic analyst and verification of the machine's accuracy.

Prove device was not properly maintained. Typically, the date and time of repairs and maintenance, as well as the nature and extent of and who performed the maintenance and repairs must be logged.

Prove there was a lack of training or an operator's error. Police must be trained in order to conduct breath tests. An untrained or uncertified police officer may not properly administer the test.

Prove records were not properly maintained. Records should be kept to show proper calibration and maintenance, and failure to keep those records updated can be used to prove the device was not properly calibrated or maintained as the law requires.

During the discovery phase of your criminal case, we will obtain the information and evidence we need to support arguments against the breath test's admissibility.

Contact a DWI Defense Lawyer Today

You can have your day in court to challenge DWI charges regardless if you took and failed a breath test or refused one. With the right DWI defense lawyer, you can be successful. Contact Villamor Law Offense today by calling us at (888) 538-2111 or filling out an online form to schedule a consultation. We will review your case and discuss your best legal options.

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