The fastest way to obtain a blood alcohol reading is through the use of a breath testing device. The Intoxilyzer 5000 is the most common of these used in Georgia. This instrument enables police to acquire a potentially admissible piece of evidence right at the scene. While this is incredibly convenient for law enforcement, accuracy is still a major concern. Everything from body temperature, calibration, and electrical frequencies can affect the readings of breath analyzers.
Generally a police officer will observe reckless driving or intoxicated behavior through a sobriety checkpoint. Law enforcement will then initiate either field sobriety tests or chemical testing. At this time the driver should be informed that they are not required to take any chemical test; however this may result in a long-term license suspension. A breath testing device is generally preferred since it is minimally invasive and typically more accurate than the field sobriety tests that rely on physical abilities.
To complete the breath test, the driver will blow into the instrument for an amount of time until the reading can be generated. It is worth noting that it could be difficult for people with medical conditions to exhale for so long. If the reading generated is at .08 or above, the suspect may be charged with DUI. The reading may be as little as .02 for drivers under 21, or .04 for commercial drivers.
Is There a Chance My Breath Test was Inaccurate?Although taking a breathalyzer requires little more than blowing into a tube and following the officer’s instructions, mistakes often occur. If the machine isn’t calibrated and regularly maintained, it may provide false results. Officers must keep detailed service logs to show that the device was properly cared for, as failing to provide these records could make the test results inadmissible. The Georgia breathalyzer is performed on a device known as the Intoxilyzer 9000. Unfortunately, this particular machine is known more for its flaws than for its accuracy.
There are many basic flaws associated with breath analyzers that you should know about. Did you know that unless the instrument is calibrated properly, the results can be artificially inflated? That’s right. The Intoxilyzer 5000 (along with other breath testing machines) needs to be regularly calibrated by a competent individual. Otherwise, factors such as changing air temperature will affect the reliability. High readings may also be caused by mouth washes and breath sprays containing alcohol. In addition, many physical conditions can alter readings including acid reflux and dental diseases.
Common Breath Test DefensesTo ensure accurate BAC calculations, officers should comply with the industry’s suggested 20-minute observation period. This means waiting 20 minutes before administering the breathalyzer to ensure you don’t belch, vomit, or regurgitate into your mouth.
The purpose of a breathalyzer is to determine the amount of alcohol in your bloodstream, though it will detect alcohol on your breath as well—which can substantially elevate the test results. Thus, the 20-minute observation period reduces the risk of contamination due to mouth alcohol.
In the event that an officer fails to follow the appropriate observation period before administering a breathalyzer, the court will not give the test results as much as weight as they would normally be given. Occasionally, the results may even be thrown out entirely; it all depends on the other facts and evidence involved in the case.
Should You Refuse to Take the Breath Test?If a driver has not been drinking and driving and police ask you to take a breath test and you say no, you will automatically be arrested for DUI. However, if you have been drinking and driving and decide to take the breath test and you fail by going over the legal limit of .08%, you will also be arrested for DUI. To make it a bit more enticing, police are to remind you of Georgia’s Implied Consent Law and that refusing to take a chemical test will result in serious penalties.
Many people are surprised that the implied consent warning they were read was given to them in a way that they did not know they really have a good choice. It sounded like they were going to lose their license if they took the test and it sounded like they were going to lose their license if they refuse the test. Many people unfortunately chose a decision to refuse it. However in this particular case the implied consent warning does give you options if you take the test that you are not going to get if you refused.
For example if you refuse the State’s tests, they are not going to help you get an independent test. They don’t have to. The law says they don’t have to. You are going to lose valuable rights if you did not take the original test offered by the police, which is the official breath or blood test.
If you are ever put in this position you should usually submit to the test unless you’ve been in an accident involving injuries or death. You should take the test and then ask for your independent test of blood and later breath.
Requesting Your Own Breath TestAlthough the Implied Consent Law essentially forces you to take the state’s breath test, the same law also extends a number of valuable rights to drivers. In addition to allowing you to request a second test, the law gives you the right to choose the test location and requires law enforcement officials to take certain steps to protect your rights.
In fact, under the Implied Consent Law, an officer must do all of the following if you request independent testing:
If the officer overlooks any of the above requirements, it is a clear violation of your rights—and if your rights weren’t protected at every stage of your arrest, then the state’s test results will not be admissible in criminal court.
Penalties for Refusal
In the states where police legally cannot force a breath test or blood test from your body, the usual “penalty” for not taking a “chemical test” is most commonly loss of driver’s license (or loss of driving privileges in that state if your are licensed by another state at the time of your arrest.)
A few states have passed additional laws penalizing the driver who refuses to be tested with monetary penalties or other similar sanctions, but there are limits to what punishment can be exacted against a person who chooses NOT to incriminate himself/herself.
What to do if You Failed a Breath TestYou are at a critical juncture, which requires you to make a decision. You can take a chance and trust that the legal system treats you fairly or you can hire a DUI lawyer with years of experience to help guide you through this very complicated and serious process. With your driver’s license, money, job, personal pride and freedom at stake – this is an easy decision.