A police officer stopped you. After talking to you, the officer suspects you of impairment. The officer requests a breath test, and you comply. The machine determines that your blood alcohol concentration level equals or exceeds .08 percent (Colorado’s legal limit), and the officer places you under arrest for drunk driving. That’s the end of it. Right?
Wrong. Like any other electronic device, breath-testing machines require routine maintenance and calibration to work properly. In addition, the officer using the machine requires training to do so properly and in accordance with established procedures. Even with training, however, mistakes happen. If anything goes wrong during the administration of the breath test, the court might not allow admittance of the results into evidence.
Police officers and their departments often make the following common mistakes when using breath testing machines:
- Officer lacks certification on the device
- Testing violated established procedures
- Unacceptable device used for testing
- Failure to routinely calibrate and maintain device
- Failure to consider factors such as smoking or eating before testing
- Failure to obtain at least two results within .02 of each other
How am I supposed to find out if these mistakes happened?
You don’t necessarily need to do it yourself. Your criminal defense attorney will request to see the maintenance/calibration records of the machine used in your testing, the officer’s certification and other information. Once gathered, a review of this information determines whether a mistake occurred.
What happens if a mistake did occur?
If the evidence indicates a mistake, the prosecution will have the burden of establishing that the officer had other reasons to assume your impairment. Even so, an officer’s subjective opinion only goes so far before the court requires actual physical evidence. If the court rules that the breath test results cannot be admitted as evidence due to an error, it could also rule that the officer failed to obtain sufficient probable cause for your arrest. At this point, the court could dismiss the charges.
Do I need a criminal defense attorney?
DUI charges might not seem that serious, but the long-term effects a conviction could have on your personal and private lives may prevent you from obtaining a job you want, a scholarship for college or even a place to live, depending on the circumstances.
In order to consider every avenue possible to challenge the charges you face, it would likely be in your best interests to enlist the aid of a criminal defense attorney right away. Without an understanding regarding what to look for in relation to DUI charges, you might not ask the right questions. A potential violation of your rights or procedural mistakes could escape your view and cost you your future.