Virginia DUI Breath Tests

Breathalyzers are one of the primary methods that law enforcement uses to discern whether someone is driving while under the influence or not. Many people assume that Virginia DUI breath tests are always accurate because of how often they are used by the police, but that is not always the case. There are many factors that can lead to inaccurate test results. The issue is that these inaccurate results can have very real consequences for you, and your trial. If you suspect that there may be issues with your test results, contact a capable DUI lawyer that can review the necessary information and build your case.

Using Breath Tests as a Defense Strategy

A common misconception is that people must blow a 0.08 or higher on Virginia DUI breath tests, in order to be charged. However, that is not the case. If the officer believes that a person has consumed enough alcohol to substantially impact that person’s ability to operate a motor vehicle, and that person still blows a 0.07 or below, the officer still might charge that person with a DUI. Under Virginia law, there exists no presumption about a person’s impairment if a person’s blood alcohol content is 0.05 through and including 0.07. However, if a person’s breath test is below a 0.05, there is a presumption that they are not impaired. And so, if a person’s breath test comes in at or below 0.05, then an attorney would use that breath test as a strategy to convince the court to presume that that person is not impaired, and then the government must overcome that presumption.

Impact of Body Temperature on Test Results

Virginia DUI breath tests can also be impacted by the heat of someone’s body, and by proxy their breath. If a person is running a fever, and their breath is hotter than the machine anticipates, then the breath test results will be higher than they would be normally. Unfortunately, while the breathalyzer that is used in Virginia has the capacity and ability to measure the temperature of a person’s breath, the government has elected not to utilize that functionality. Therefore there is no way for the machine as it is currently programmed by the Commonwealth of Virginia to measure the temperature of a person’s breath.

In cases in which the attorney believes that their client had a higher breath temperature, the attorney should gather evidence that the person was running a fever that day. This evidence could include a doctor or perhaps a nurse who could testify that the person was, in fact, running a fever. Then the attorney would require an expert witness to come in and testify about the impact that elevated body temperature and elevated breath temperature would have on the breath testing process.

How Alcohol-Based Products Affect Test Results

When it comes to alcohol-based products, their impact on a person’s BAC varies. Generally speaking, mouthwash and cough syrup are two different kinds of scenarios. Mouthwash is topical and is normally spit out. If the mouthwash has alcohol in it, according to commonly accepted science, the residual amount of alcohol that would be present from using the mouthwash should dissipate within 20 minutes.

It is highly unusual and almost impossible for a person to be subjected to a breath test after an arrest within that 20-minute time frame. In fact, part of the protocol for breath testing is that the breath test operator must observe the subject of the test for a period of 20 minutes to make sure that nothing goes in or out of that person’s mouth for that period of time. If a person has used cough syrup, that is something that a person ingests and if a person does so voluntarily, it certainly is not a defense to a DUI. So, cough syrup is treated no differently than shots of alcohol. If a person intentionally ingests something that contains alcohol and the result is a breath alcohol level that exceeds the legal limit, that person has no legal defense for that the ensuing DUI.

Mouth Alcohol and Its Impact

If a person has mouth alcohol present, then it can skew Virginia DUI breath tests upward. Mouth alcohol is a condition where alcohol can settle into the soft tissues of one’s mouth such as a person’s cheeks or gums, or even a person’s tongue, and when a person blows out of their mouth that alcohol is captured as it is dissipating from the mouth. Normally, all residual mouth alcohol should dissipate within a 20-minute time frame. However, if a person has dentures or Invisalign, then the dissipation rate for that mouth alcohol can be extended considerably. Therefore, if a person does have something like that in their mouth and the breath test operator does not have the person remove the item if it is possible to remove it, then the breath test could very possibly be skewed against the subject of that test.

Medical Elements that Can Affect Breath Test

There are certain medical conditions that can elevate a breath test. The most commonly known condition is diabetes. If a person has diabetes and blood sugars are off, that can result in alcohol production in the body and that has nothing to do with what that person has consumed. The degree to which that alcohol can be present and can skew a breath test is subject to debate and an attorney would need evidence that convinces a court that this condition was present did alter the test results.

If a person has some sort of reflux disease or GERD, that can introduce alcohol without the person’s intent. If the person habitually spits up or lacks the ability to keep the contents of the stomach in their stomach, then any alcohol consumed is going to settle into the soft tissues of their airways and into their mouth. Therefore, that mouth alcohol will be captured by the air emanating from the person’s lungs and can skew the test against that person. This can be challenged in court.

Speaking With a Lawyer

Virginia DUI breath tests are not always accurate. There is plenty of room for human error when administering a test, and there are plenty of circumstances that can serve as mitigating factors. A skillful DUI attorney can look at the facts of your case, and the results of the BAC, and use that information to challenge the validity of your breathalyzer test results. It is important to give a lawyer any and all information in regards to medical history as well. In doing so, your attorney can poke holes in the prosecution’s evidence, weakening their case and strengthening yours. If you have been charged with a DUI, seek the legal counsel of an adept DUI attorney that can fight for you.