QUESTION
Can I fight my DUI if the breathlyzer machine wasnt working?
Asked on Sep 04th, 2011 on Criminal Law - Arkansas
More details to this question:
Arresting officer couldn't get the machine working and even said I hope I can get this working. I know that the intoxilyzer 5000 was used. I've heard that this machine has some faults and in my case it did. They couldn't get it working for a couple of minutes. Could this give me a reasonable cause to fight this DUI? Could the calibration of the machine have been wrong?
34 ANSWERS
Drunk Driving Attorney serving Spencer, MA
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Law Office of Ernest T. Biando LLC
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Yes you can-my office defends these cases all the time.
Answered on Jun 24th, 2013 at 1:06 AM
Samuel H. Harrison
Yes, you can fight it.
Answered on Jun 07th, 2013 at 12:31 AM
Appellate Practice Attorney serving Clinton Township, MI
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Thomas J. Tomko, Attorney at Law
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Yes you may be able to fight the results. I would be very interested in your case.
Answered on Jun 07th, 2013 at 12:30 AM
Criminal Law Attorney serving Howell, MI
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Law Offices of Jules N. Fiani
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Yes.
Answered on Jun 07th, 2013 at 12:30 AM
Yes, if the calibration is not accurate, the result must be thrown out. You will likely need an attorney skilled in DUIs to figure this out for you.
Answered on Sep 20th, 2011 at 2:56 PM
Drug Charges Attorney serving Houston, TX
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Cynthia Henley
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The State prosecutes cases all the time with no breath test when the accused refuses so just based on the failure of the test to work an answer cannot be given. You need to consult with a lawyer who can review the offense report, the video, and if the test did eventually take, the records of the machine to see if there is a basis to suppress the results. Even if you fail a breath test it does not absolutely mean that you will lose.
Answered on Sep 09th, 2011 at 6:06 AM
Criminal Trial Attorney serving San Jose, CA
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Law Office of Thomas F. Mueller
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It is possible to challenge the accuracy of the machine. In order to have a chance it is necessary to hire an expert to look at the maintenance records of that machine and the readout product before and after your test.
Answered on Sep 08th, 2011 at 3:09 PM
Criminal Defense Attorney serving Lake Charles, LA
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Michael R. Garber
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Yes. The machine and operator both must have current certifications.
Answered on Sep 08th, 2011 at 3:09 PM
Michael J. Breczinski
Possibly. You would have to get someone who is an expert on the machine and what could have gone wrong. However it would depend on how intoxicated you were. If you were bowing .2+ and falling down drunk they can probably make their case.
Answered on Sep 08th, 2011 at 3:04 PM
Jacob P. Sartz
Yes, the calibration could have been wrong, and yes, you could fight the results. If you have been charged with a criminal offense, you are presumed innocent until proven guilty. I'd recommend you retain an experienced criminal defense attorney or request that the court appoint you an attorney for more information. These types of cases frequently involve analyzing the test results and the testing mechanisms utilized are scientifically complicated. It takes an expert with years of experience to determine the full extent of any issues with the machine.
Answered on Sep 08th, 2011 at 3:03 PM
Bankruptcy Attorney serving Federal Way, WA
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Freeborn Law Offices P.S.
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Sure, that is one issue in a DUI case. Assume that the breathalyzer is NOT working, you could still be convicted based upon other evidence in your case; ie., driving, physical appearance, performance of the field sobriety tests (if they were done). The DUI statute reads ".08 or above, OR driving affected to an appreciable degree". DUI cases are very technical. To have you greatest chance of success, I encourage you to retain the services of an attorney.
Answered on Sep 08th, 2011 at 1:17 PM
3 Awards
The Intoxilyzer has multiple problems with it. However, you are going to need a skilled DWI trial attorney to handle and fight a breath test. Only about 5% of the attorneys out there can fight a breath test and actually win. Depending on the county you are in, I would recommend you hire me or look for an attorney with The National College of DUI Defense (NCDD).
Answered on Sep 08th, 2011 at 12:54 PM
Adoptions Attorney serving Lansing, MI
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Austin Legal Services, PLC
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Those arguments and others can always be brought up when contesting a DUI or in plea bargaining with the prosecutor. You need to have a skilled and trained eye to carefully evaluate the police report and lab results for any such errors that could get the charges reduced or dismissed. A DUI can be very costly, even for a first offense, in terms of vehicle immobilzation, ignition interlock, probation, possible jail, fines, costs, and higher insurance premium. An experienced DUI attorney is a good investment that will more than pay for himself in what he can save you.
Answered on Sep 08th, 2011 at 12:38 PM
Steven D. Dunnings
The answer is yes but the failure of the machine is not a conclusive defense. You still have to deal with the arresting officer's testimony concerning the circumstances of his initial stop and subsequent arrest of you.
Answered on Sep 08th, 2011 at 11:33 AM
Gary Moore
You CAN fight your dui charge.
Answered on Sep 08th, 2011 at 11:23 AM
Roianne Houlton Conner
If the machine was malfunctioning or not working correctly the answer is Yes.
Answered on Sep 08th, 2011 at 10:46 AM
Criminal Law Attorney serving Worcester, MA
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Gregory Casale, Attorney at Law
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I don't know enough detail to evaluate your chances of success, but you certainly have right to fight the charge. If you would like yo discuss this in more detail, call me.
Answered on Sep 08th, 2011 at 9:44 AM
Criminal Defense Attorney serving Birmingham, AL
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The Harris Firm, LLC
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These are certainly issues that an attorney might want to bring up. You need to hire a lawyer. He will know exactly what to attack and how to attack it.
Answered on Sep 08th, 2011 at 9:36 AM
A faulty machine may give rise to you being able to challenge the results. This may take the hiring of an expert who can discuss the machine and why the results are not valid.
Answered on Sep 08th, 2011 at 9:36 AM
Chapter 7 Bankruptcy Attorney serving Appleton, WI
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Sisson & Kachinsky Law Offices
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You certainly can fight it. Contact the attorney of your choice.
Answered on Sep 08th, 2011 at 9:15 AM
Of course. If it wasn't working, then there probably weren't any results. So all they have is FSTs and maybe some bad driving. Prosecutors hate this type of a case, and DUI attorneys love it.
Answered on Sep 08th, 2011 at 9:07 AM
You can fight your DUI anytime. The question is do you have a chance to win? Fighting a DUI is a very technical procedure. There are lots of technical reasons that a breath test is wrong. To fight this you will need an attorney that can evaluate the facts of your incident and know what questions to ask. Following his advice will give you the best results.
Answered on Sep 08th, 2011 at 9:02 AM
Attacking the reliability and accuracy of the breathalyzer used when you were charged with DUI is just one of a number of weapons a good DUI attorney can use to defend you. Hire an attorney that will make the prosecutor work and will use every tactic to win for you.
Answered on Sep 08th, 2011 at 8:49 AM
Automobile Attorney serving East Lansing, MI
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Nichols Law Firm PLLC
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Absolutely yes and you should. Contact a QUALIFIED DUI attorney today.
Answered on Sep 08th, 2011 at 8:49 AM
Personal Injury Attorney serving Omaha, NE
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Chandler Conway, P.C., L.L.O.
It's possible. You need to speak to your DUI lawyer about it. He or she can request the calibration information from the prosecutor's office.
Answered on Sep 08th, 2011 at 8:49 AM
Yes you can. The Department of Health keeps records on the machines and if it wasn't working, your result may be declared invalid.
Answered on Sep 08th, 2011 at 8:44 AM
The answer to most of your questions would be "yes, possibly". If you have an attorney, your attorney can obtain all of the documents that he is entitled to from the prosecuting attorney and can then advise you whether or not there is any defense to the charge that you are facing. If you do not already have an attorney, you definitely need to hire one. I might be able to offer my services to you at a reasonable price. I have handled hundreds of DWI's in the thirty-three years that I have been practicing law.
Answered on Sep 08th, 2011 at 8:43 AM
It could have been wrong, however to prove that you would have to have an expert test the machine and challenge the calibration.The State has specialists that test the calibration on a regular schedule.Your attorney can subpoena the testing records.You may also be able to challenge whether the officer did the test correctly.There are some judges that are more sympathetic to a challenge to the BAC tests than others.Good Luck.
Answered on Sep 08th, 2011 at 8:35 AM
Daniel Kieth Martin
This is a very common question. In fact I would say that more often than not clients tell me there was a problem with the Breathalizer. Officers will claim that the problem was the the suspect was not blowing hard enough and if the machine does not get enough air it will not generate a reading. This is one of the many safe guards designed into the machine to make sure that the results are accurate. (Pretty much exactly what they say on the stand when I ask them.) To which I reply ok, which mechanism is it that makes sure that the machine will not give a reading if there is not enough air. The officer replies 'I don't know' and I say how do you know that part of the machine wasn't broken? The bottom line is the fact that there was trouble with the machine can help but it is not the factor that the jury will consider. The jury will also consider how well trained the officer was and how well the officer testified as well as how high the blood alcohol was (according to the machine) and other factors such as was reckless driving observed by a third party. The best thing I can tell you is to contact a criminal defense lawyer who has experience with DUIs and discuss the case completely with them. I hope you get the best possible result.
Answered on Sep 08th, 2011 at 8:35 AM
Criminal Law Attorney serving Los Angeles, CA
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Law Office of Edward J. Blum
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Yes. Fight it. The machine not working is a great way to fight your case. Assuming that your driving wasn't horrendous, the machine results are the only thing the prosecutor has against you.
Answered on Sep 08th, 2011 at 8:30 AM
This type of breathylyzer has caused some great problems in Ventura County. Any problems with a machine can provide great benefit in defending against a DUI. Call me with any questions.
Answered on Sep 08th, 2011 at 8:15 AM
3 Awards
The machines are not great. Blood is much more accurate. Sometimes these machines need repair and that is documented. All of these are issues are defenses, but it is most often a trial issue. Were you able to do the test and get a result? What was it? Why were you stopped? Did you do the roadsides? The machine can be wrong, but usually the jury needs to see that the driving was good and the roadsides were fine. If you do not seem like a drunk, but the machine says you should look like one, that is a decent defense. If you look like a drunk and the machine says so too, it is harder to beat. But, maybe you have an injury that prevents you from walking and doing roadsides correctly.
Answered on Sep 08th, 2011 at 8:06 AM
Criminal Defense Attorney serving Montrose, NY
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Law Office of Jared Altman
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Yes. Possibly. But if it passed the self-tests you're going to have an uphill battle. Experts that I have consulted have told me they could testify to 0.03% error in these breath test machines. If you need more than that then you're in trouble.
Answered on Sep 08th, 2011 at 8:06 AM
Car Accidents Attorney serving Little Rock, AR
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Moffitt & Phillips, PLLC
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Yes, you can fight it. You will need to hire a lawyer familiar with defending DWI cases - like my office.
Answered on Sep 08th, 2011 at 7:58 AM