When Can Breathalyzer Results Get Thrown Out?
If you are stopped on suspicion of a DWAI or DUI, it is important to know up front that you do not have to submit to a chemical test when asked, including a breath test administered by a law enforcement officer using a breathalyzer. You do, however, have to submit to a breath or blood test under Colorado’s express consent law once you are arrested. Failure to submit to this type of breath test or other chemical test — an evidentiary test — can result in serious penalties. Whether you did not realize and agreed to a preliminary breath test, or you took a breath test following a DWAI or DUI arrest, you should know that there are a range of options for challenging the results of a breathalyzer test in Colorado.
To be sure, with help from a Denver DUI defense lawyer, it may be possible to get your breathalyzer results thrown out. How can you get your breathalyzer results thrown out? Consider some of the following possibilities.
Breathalyzer Malfunctioned or Was Defective
You may be able to show that the breathalyzer malfunctioned or that there are known defects with the breathalyzer used.
Specific Breathalyzer Did Not Meet the Instrument Requirements Under Colorado Law
Colorado law requires all breathalyzers used to be a “Certified EBAT Instrument,” and you may be able to show that the instrument used did not meet the required specifications.
Two Breath Tests Were Not Administered As Required Under Colorado Law
Two breath tests must be administered to obtain two samples, and they must show similar results in order to be used against you. If only one breath test was administered, the results may be invalid.
Your Breath Test Was Not Administered Within Two Hours of Your Driving
Evidentiary breath tests must be administered within two hours of your driving, otherwise you can not face the enhanced punishment for having a breath test over 0.20.
Breathalyzer Samples Were Insufficient
Specific requirements for the breath samples must be met, including that they contain “deep” air. If such requirements for the samples were not met, you may be able to have the results excluded.
Required Procedures for Breathalyzer Testing Were Not Followed
In addition to the requirements above, there are several other required procedures for breath testing under Colorado law, including the use of a new mouthpiece for administration of the test, that the results be analyzed in a certified laboratory and by a certified EBAT operator, and much more. If any required procedures were not followed, it may be possible to have your breath test results excluded.
Officer Administering the Breathalyzer Was Not Properly Trained
Law enforcement officers administering breathalyzer tests must be properly trained. If they were not properly trained, or failed to follow any required procedures, the results may be invalid.
Contact Our Denver DUI Defense Attorneys Today for Assistance
Were you arrested for a DWAI or DUI and are now facing charges after the results of a breathalyzer test? Depending on the circumstances and facts surrounding your case, you may be able to argue that the breathalyzer results should not be used against you in a DWAI or DUI prosecution. The first step in defending these cases is understanding how the test process is supposed to look so we can begin to find places of error that could result in the dismissal of your case. One of the experienced Denver DUI defense lawyers at DeChant Law can talk with you today about your case and can discuss options for getting your breathalyzer results thrown out. Contact us to learn more about defending against DWAI and DUI charges in Colorado and the defense options that may be relevant to your case.
Sources:
codot.gov/safety/impaired-driving/breathalyzers-1
law.justia.com/codes/colorado/title-42/regulation-of-vehicles-and-traffic/article-4/part-13/section-42-4-1301/
