Can a Lawyer Challenge the Results of a Breathalyzer Test?
November 29th, 2021
If you were stopped and charged with Operating While Intoxicated (OWI), the results of a Breathalyzer test can be a critical piece of evidence. Successfully challenging the reliability of the test results or whether they can be admitted as evidence can often mean the difference between a conviction and having the case dismissed.
If you have been charged with an OVI in Michigan, Elmen Legal can help. I will evaluate the circumstances of your arrest and analyze the results of the Breathalyzer test to challenge the test results and try to have the charges reduced or your case dismissed.
Michigan Breath Alcohol Content (BAC) Levels
In Michigan, it is illegal to operate a motor vehicle with a breath alcohol content (BAC) that is over the legal limit.
The Michigan legislature has established specific limits that make it a crime to operate a motor vehicle.
- Minors are prohibited from operating a motor vehicle with a BAC greater than .02%.
- A driver is presumed to be legally intoxicated if their BAC is greater than .08%
- Drivers with a BAC of .17% will be prosecuted under Michigan’s Super Drunk law and face enhanced penalties
Michigan Requirements for Breath Testing
There are very specific criteria that must be met before Breathalyzer test evidence can be admissible in court.
- The officer who administered the test must be certified to do so.
- The breath test machine must be checked for accuracy once per week and test within an acceptable range.
- The breath testing machine must be calibrated every 120 days.
- The test subject (i.e., the driver) must be observed for 15 minutes before the test is administered to verify that the subject to not regurgitate, smoke, or place anything in his or her mouth (any of these can affect the accuracy of the test results).
- The test must be properly administered.
The police officer who administers the test must follow these protocols precisely. If the police officer or police department failed to follow the protocols, the results of the Breath test are unreliable and should not be considered as evidence in your case. If any of the requirements are not met, you can challenge the accuracy and admissibility of the breathalyzer test results. If they are thrown out, you are much more likely to have your case dismissed or negotiate a very favorable plea arrangement.
When you hire Elmen Legal to represent you in an OVI case, I will evaluate these factors and may be able to file a Motion to Suppress Evidence to have the test results thrown out. In addition, there may be other scientific, legal, and evidentiary challenges available, such as how and why you were stopped and whether the police officer had reasonable suspicion to believe a crime had been committed.
Did the Police Officer Advise You of Your Chemical Test Rights?
Before administering the breath test, the arresting officer is required to notify you of your chemical test rights. Under Michigan’s implied consent law, you must either submit to a chemical test or face a 1-year license suspension.
However, people with certain medical conditions are not required to submit to a chemical test. People who have diabetes, hemophilia, or who take anticoagulants are not required to submit to a blood test, because doing so could be medically dangerous and may constitute an unlawful search under the Constitution.
Other times, a person is arrested for an offense other than OVI and then asked the suspect to submit to a chemical test. If you were not arrested under suspicion of OVI, there is no probable cause to ask you to submit to a chemical test and the basis for administering the test can be challenged.
Challenging the Results of a Breathalyzer Test
I may also be able to challenge the reliability of the test results themselves.
The breathalyzer is a very sensitive piece of equipment. To return an accurate result, it must be properly calibrated and the sample must be consistent. If something contaminated the sample, you may have emitted a greater amount of vapor than you would have ordinarily exhaled from your lungs. Ordinary items like mouthwash, breath fresheners, and medicines contain alcohol that can alter affect the reliability of the breath test results.
In addition, if you were smoking, regurgitated, or had anything in your mouth during the 15 minutes before the test was administered, the test results may not have been reliable and you could successfully challenge them.
Challenging the Legality of the Breath Test
To place a person under arrest for OVI, a police officer must have reasonable suspicion that the driver was breaking a traffic law, and probable cause to believe that the driver was under the influence of alcohol. If either of these factors is absent, I can challenge the basis for the initial traffic and whether there was a legal basis to administer a breath test. This means that the police officer may have violated your Fourth Amendment protection against illegal search and seizure, and that the results of the breath test should not be considered in your case.
Finally, under the Sixth Amendment, you have the right to confront your accuser. You and your lawyer have the right to cross-examine the officer who suspected you were intoxicated and placed you under arrest. If the police officer does not appear for trial, you can challenge whether the results of the test can be considered as evidence. This can lead to the evidence being thrown out and the case against you being dismissed.
Contact Elmen Legal for Michigan OVI Defense
If you are facing charges of OVI in Michigan, Elmen Legal can help. I proudly represent people in and around Ann Arbor and throughout Michigan.
Learn more about the services I offer, read reviews from other people I’ve helped, and get answers to Frequently Asked Questions. Then contact Elmen legal today to schedule a free consultation to discuss your case.
Categories: Drunk Driving / OWI