How Can You Fight the Breathalyzer?

If you were stopped for Drunk Driving/DUI, you may have been given a breathalyzer.  Your first question is probably- how do you fight the breathalyzer reading?  There are two types of breathalyzer procedures employed by sheriff’s, police and California Highway Patrol (CHP).  The first type of breathalyzer test you may have been subjected to is a Preliminary Alcohol Screening (PAS). 

A PAS test is one of many field sobriety tests that law enforcement uses to determine whether a driver is driving with a .08% or higher of Blood Alcohol Content (BAC) in their blood stream.  The PAS device does not actually directly measure your BAC, but measures it based on deep air from your lungs and uses a mathematical formula to arrive at an estimated BAC.  The PAS device, like all machines, has a built in inaccuracy that we can exploit both at your DMV hearing and at trial to fight your DUI. 

In addition, the prosecution and DMV have to establish that the PAS device was working properly, the officer was adequately trained to use it, and that the device was properly administered. Under Title 17 of the California Code of Regulations, there are requirements that must be observed when using a PAS device.  If these regulations are not followed, we can attack PAS test results.  For instance, if you were not continuously observed for 15 minutes before taking the test, if you gave “weak” breath samples, or if the device was not properly calibrated, the PAS device will not produce a reliable result.  It can even give a “false positive” result. 

Other factors that may effect the PAS device result can include if you had something in your mouth when the test was administered, if you belched when the test was administered or if you are prone to acid reflux or gastroesophageal reflux disease otherwise known as “GERD.” 

You may also have been given an evidential breathalyzer (EPAS) after the PAS test.  This evidential breathalyzer is referred to as the EPAS.  This may either be administered at the roadside or at a law enforcement facility.  Typically, it is the same device as the PAS test but the officer literally flips a switch that tells the device that it is giving an evidential breath test.  The EPAS or evidential breathalyzer prints out a breathalyzer strip or readout after the test is completed.  The EPAS can be attacked in the same manner as the PAS device.  In addition, you must be lawfully arrested pursuant to Vehicle Code section 23612 prior to the test being administered for the result to be admissible against you at your DMV hearing.  I have won many DMV hearings based on the simple fact that the officer mistakenly thought he was supposed to arrest the driver after the evidential test. 

The Law Office of Michael E. Mitchell defends clients charged with DUI / DWI and traffic offenses in California's Central Valley and San Joaquin Valley, including Fresno County, Tulare County, Merced County, Madera County, County of Kings, Mariposa County, Fresno, Tulare, Merced, Madera, Kings County, Mariposa, Visalia, Hanford, Dinuba, Los Banos, Selma, Kingsburg, Clovis, Sanger, Reedley, Kerman, Parlier, Coalinga, Firebaugh, Fowler, Mendota, Visalia, Avenal, Corcoran, Lemoore and Lemoore Naval Air Station (NAS), Porterville, Bass Lake, Shaver Lake, Millerton Lake, Hensley Lake, Pine Flat Lake, Yosemite National Park, Sequoia National Park.  We also defend motorists pulled over for traffic violations along San Joaquins roads and highways including interstate 5 and highways, 49, 41, 99, 168, 192, 180.