Breathalyzers

Although the breathalyzer is often the most common instrument used to determine an individual’s sobriety, the test that is done on the side of the road is not admissible against a person in court. It can only be used as a positive or a negative. The number cannot be made known to a court. It is not considered as scientifically accurate as the breathalyzer test done at the station.

To further determine the role of breathalyzers in your Atlanta DUI case, it is important to consult with an attorney as soon as possible. A knowledgeable DUI lawyer in Atlanta can help you understand the legal processes associated with your breathalyzer result, as well build a defense to help defend against any potential penalties.

History of Breathalyzers

Georgia is on its third generation breathalyzer machine, the Intoxilyzer 9000, which was put in place in 2015 is the newest model. The machine is supposed to be fairly accurate. It is supposed to measure the breath for ethanol at different wavelengths than the older machines. It has not been run through as many tests and is not used in many states.

Common Misconceptions

The first misconception about breathalyzers is that a person can put a penny under their tongue to discredit the breath test.

There are also misconceptions about mouth alcohol, which is still a major problem with breath testing and common breath test errors. The machine does not necessarily pick up mouth alcohol. If a person has a substance in their body that was consumed within a certain period of time, mouth alcohol is supposed to dissipate. If the alcohol does not dissipate, it can cause a higher than normal breath test result and does not depict the true level of alcohol in the person’s body. Gastric reflex and other medical issues can affect the test.

Other issues are radio frequency interference or different chemicals such as acetaldehyde and things of that nature that can interfere with the breath test. There are a number of different things that can interfere with breath testing. Any further misconceptions about a breathalyzer in an Atlanta DUI case can be best explained by an experienced attorney.

Calibration Methods

According to the Georgia Bureau of Investigation, the Intoxilyzer 9000 is checked with every breath sample. A dry gas calibrator is attached to the machine that runs with each breath sample the person gives. The calibration is checked quarterly by Georgia Bureau of Investigation by a state patrol trained officer.

Potential Issues

The machine has not been in use long enough to identify any problems. The problems might come out over time. However, because breathalyzer machines are easy and fast, they are the leading way to determine an individual’s level of intoxication. They offer an indirect way of determining how much alcohol is in somebody’s blood.

Although easy and mostly accurate, breathalyzer results can be challenged in court. A person would need an expert witness to do that.

To be safe, after a person takes a state administered breath test, they should ask for an independent chemical test of their blood, breath, urine or other bodily substance from a qualified person of their own choosing.

To understand the role of breathalyzers in Atlanta DUI cases as they relate to your particular case and the potential of, be sure to consult with experienced legal counsel immediately.

A lawyer may use a person’s breath test as a defense strategy depending on the results of the test. The defense strategy depends on whether the breath test registered at above or below a 0.08. If it was below that number, then an attorney can show that the individual was not legally impaired.

A defense attorney may want to argue further defense strategies involving mouth alcohol or interfering substances. The lawyer may also argue that the officer may not have followed certain training in how to administer the test correctly, or that the machine could have been malfunctioning prior to the time that the defendant took the test. Simply blowing a certain number into the machine is not conclusive proof that the person is guilty of a DUI.

To determine whether any breath test errors may be present in your Atlanta DUI case, it is important to contact an attorney immediately. A knowledgeable lawyer can examine the results of your breathalyzer tests in Atlanta and craft a specific legal defense depending on the circumstances.

Temperature of a Person’s Breath

There was a study completed in Alabama where breath testing directors came up with the belief that if a person has a high body temperature, the breath level that is read by a machine will be elevated. In essence, a breath test is an indirect way of trying to determine how much alcohol is in someone’s bloodstream, and as a result, there are a lot of variables that go into how that number is calculated.

One of the elements used to calculate a person’s BAC is that their presumed body temperature is 98.6 degrees. However, that is not always the case. A higher alcohol content or higher body temperature can contribute to a higher number resulting on the breath machine. The person would need expert testimony to come in and substantiate that result. There are also studies the state would present that show that that is not the case. However, this is an error that may occur during a breath test in an Atlanta DUI case.

Alcohol Based Products

Any alcohol based substance is read in the breath machine as alcohol. Therefore, it does not make a difference whether it came from mouthwash or a bottle of alcohol. There is no definition in the code that the alcohol reading has to come from some sort of alcoholic drink like beer or hard alcohol. Mouthwash can produce an alcohol based reading in Atlanta DUI cases.

If a person alleges that the substance was not ingested or that the substance merely appeared in the person’s mouth but did not dissipate, then that may be a defense to use against a potential breath test error in an Atlanta DUI case.

Mouth Alcohol and Teeth

If a person has dentures, those dentures could possibly pool alcohol. That could potentially produce a mouth alcohol defense. If the breath machine is not registering deep lung air, it may simply register that alcohol that is in somebody’s mouth. This can produce an artificially high number.

In other words, mouth alcohol can be a false or an improperly high number. Mouth alcohol would not necessarily be reflective of how much a person had to drink, and may simply be a higher amount of alcohol in somebody’s breath test than is truly affecting them and making them impaired. This may be a potential breath test error in an individual’s Atlanta DUI case.

The refusal of a breath test in Atlanta may be wise or necessary sometimes, but it can also have significant consequences. Before making a decision, consult with an skilled DUI attorney experienced with breathalyzer testing to determine the best course of action in your particular case and in your particular circumstances.

Role of Implied Consent

Implied consent is a contract between the individual and the state of Georgia. What it means essentially is that, by getting a driver’s license, the person has agreed to submit to a state-administered chemical test for or blood, breath, urine, or other bodily substances for the purposes of determining if they are driving under the influence of alcohol or drugs.

However, despite the implied consent, a person is allowed to refuse the testing subject to certain penalties.

Valid Search

The Georgia Supreme Court and the Williams Case indicate that just because the person consents for the purposes of implied consent does not mean that the person has consented for the purposes of a valid search. In Mcneely v. Missouri, the United States determined that a blood, breath, or urine test cannot be compelled from an individual without a warrant or consent.

As a result, in Georgia, all blood, breath, and urine tests are searches that a person either has to expressly consent to, and that consent has to be voluntarily made. Just because a person says “yes” on implied consent, a suggestion or a question by the officer does not mean that it is full valid consent.

Refusal to Take the Test

There are three kinds of samples used in Atlanta alcohol and drug tests:

• An Intoxilyzer 9000
• A breath machine
• A gas chromatograph blood testing mechanism to test blood

If someone refuses to take the breath test, blood test, or urine test, their license can be suspended for 12 months without a permit. The second or third time a person refuses one of these test, the consequences are exactly the same.

DUI Alcohol Education Course

An individual would have to enroll in a DUI alcohol education course regardless of whether they refused or submitted to the test. If the person gets convicted of driving under the influence, the result is a mandatory 20-hour enrollment in DUI school. This approach is called “risk reduction.” It is a mandatory course that a person must take in order to get their license back.

Reasons to Refuse a Breath Test

If a person thinks they are under the influence of alcohol and they are going to fail it, they may refuse to take the test. Another reason given may be that they do not trust blood, breath, or urine tests. There is usually no reason given other than the fact that the person simply does not want to submit.

A justifiable reason can be that the person believes that the test is going to be wrong, but most people do not have any education or understanding as to why the test would be wrong.

There is no legal justification to refuse other than the fact that the person simply chooses to refuse, which the person has the legal right to do.

How an Attorney can Help

While there is no requirement to submit to the test, there are penalties for refusing. Therefore, the best case scenario is to have an experienced attorney guide and advise you through the process so as to determine the best course of action at each step.

A good lawyer will fight to have the charges dismissed if possible, and if not, to mitigate the damages and work for the best possible outcome in the case.

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