201905.21
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The Many Ways to Challenge Breath Alcohol Tests in a Georgia DUI

in Our Blog

If you failed an Intoxilyzer test in the state of Georgia, this does not necessarily mean the prosecutor has a winning case against you following your DUI arrest. An experienced Georgia DUI defense attorney may be able to challenge the results of your BAC tests in court and if the court agrees the breath sample you gave is inadmissible—for any reason—the pending DUI charges against you could be dropped. While the specific facts and circumstances surrounding your Georgia DUI arrest will determine whether your attorney’s challenge is successful, the following are some of the ways the results of the Intoxilyzer may be called into question:

  1. The Intoxilyzer results are not reliable because the breath sample was contaminated by the presence of foreign substance in the mouthwhich contained alcohol such as toothache medicine, breath freshener or mouthwash. Environmental factors such as paint fumes, adhesives and varnish can also produce a falsely high reading. 
  2. The Intoxilyzer machine was not properly calibrated—even though the Intoxilyzer 9000 automatically calibrates, an older version of the Intoxilyzer might have been used. Testimony must be provided from the police officer who arrested you, stating the device was calibrated at the time of your arrest.   
  3. The Intoxilyzer test was not properly administered.Like other breathalyzer tests, an accurate reading depends largely on how the test was administered. The breath sample must be taken from deep lung air and the officer must have observed you for a full fifteen minutes prior to administering the test to ensure you did not regurgitate, smoke, drink or eat. The officer who administered the test could also lack basic Intoxilyzer training, therefore the test results could be deemed unreliable. 
  4. The Intoxilyzer test was administered subsequent to an unlawful search. If there was no probable cause to pull you over (like breaking a specific traffic law) and there was no reasonable suspicion to believe you were intoxicated (slurred speech, bloodshot eyes, impaired motor skills), then there was no legal reason to administer the Intoxilyzer test and your attorney may file a Motion to Suppress the results of the test. 
  5. The officer who administered the Intoxilyzer test does not show up in court.You are afforded the right to confront your “accuser” or “witness” under the Sixth Amendment. Therefore, your attorney has the right to cross-examine the officer who administered the Intoxilyzer test. If he or she fails to show up, your attorney may be able to have the charges dropped.  
  6. The police officer botched the implied consent reading. The arresting officer is required to read the complete, statutory implied consent notice to a driver arrested for DUI. 
  7. There has been no periodic inspection of the Intoxilyzer machine.The Georgia Department of Public Safety mandates a quarterly inspection of the Intoxilyzer, and if such inspections did not occur, your attorney can raise the issue of the deficient device at trial, or during pre-trial motions. 
  8. You have a medical condition which skewered the BAC test results.Some of the medical conditions which can cause an Intoxilyzer to read a high BAC include diabetes, gastroesophageal reflux disease (GERD), asthma and liver or kidney disease. 
  9. Contamination of the breath sample.There are many different things that can contaminate an alcohol breath sample, such as regurgitating, burping, having a dental bridge, dental appliance or false teeth, having wisdom tooth pockets, or having smokeless tobacco or chewing gum in the mouth, any of which can “trap” alcohol and render a false BAC reading. 
  10. You were too impaired to give consent to the Intoxilyzer test.Recent Georgia cases have ruled that a person who is extremely drunk or borderline unconscious cannot legally give voluntary consent to a breath test. 
  11. The histograms associated with the Intoxilyzer 9000 can be “wonky.” The Intoxilyzer training manual offers multiple graphic images of what a valid and invalid histogram should look like, however many Georgia drivers’ histograms look nothing like these examples. An experienced Georgia DUI attorney can assert that you talked, walked, acted and responded in a normal fashion, therefore the Intoxilyzer 9000 histogram could be skewered. 

Call an Experienced Georgia DUI Lawyer Immediately Following Your DUI Arrest

To ensure the best possible outcome of your DUI charges, contact Melanie Ellwanger today. Melanie will be the advocate in your corner that you desperately need at this time and will protect your rights and your future at every turn. If you want a Georgia DUI attorney who will aggressively fight your charges, contactMelanie Ellwanger today by calling (404) 803-3105.