If I blew into the breath machine, can it be thrown out?
Getting breath results thrown out
How can breath results be thrown out?
Various factors are considered when deciding whether breath test results will be admitted –including the proper maintenance of the equipment used, whether the particular breathalyzer in your case was an approved machine, whether you burped within 20 minutes of taking the breath test and the actions of the officer administering the breath test.
Proper maintenance of the equipment used
First and foremost, the breathalyzer itself must be reliable, in good working order – i.e., it must be properly maintained. If the equipment used in the breath test has not been properly maintained, the risk of getting a false reading from the test increases substantially. Therefore, if it can be proven that the machine was not properly maintained, the results will be in question as to whether they are reliable.
Breathalyzers, like speed detectors that police use to catch speeders, must be calibrated periodically. Calibration is a procedure performed by laboratory personnel to ensure the accuracy and reliability of the instrument. Routine maintenance is also performed to ensure the continued accuracy and proper function of the breathalyzer. Once the instrument is calibrated, a certificate of calibration is completed by the laboratory and a certified copy provided to the law enforcement agency using that breathalyzer. Failure to follow maintenance schedules can raise a reasonable doubt about the machine’s results and lead to an acquittal. Besides the alleged technical defects that can be raised regarding the breathalyzer used, it is also possible to bring in experts to testify as to whether the officer failed to follow the proper protocol for operating the breathalyzer. Additionally, the expert could also explain whether the defendant’s blood alcohol level was incorrectly inflated due to biological factors.
Was the machine used an approved machine?
Second, the use of a machine that has not been approved is another way to keep the breath results out. (so they won’t be admitted into evidence.) As this goes to printing, there are judges in Florida that have ruled certain breathalyzers (Intoxilyzer 8000 series) are NOT approved machines. They are throwing some of the breath readings out! All breathalyzers must be approved for use. If the equipment used has not been authorized, then all results obtained from subsequent breath tests will be inadmissible.
Was implied consent read to you if you initially refused the breath?
It is also important to point out that that if you refuse to give a breath test, the officer must inform you of your implied consent (talked about earlier). Failure by the officer to inform you about your implied consent, or misstating that implied consent, will also be grounds for keeping the breath test results from being admitted into evidence.
Did you burp or regurgitate within 20 minutes before taking the breath?
If you happen to belch, burp, or regurgitate, the officer must wait twenty minutes before administering the breath test. Why? Your breath alcohol reading will be much higher, and therefore, to get a true reading, a twenty minute time period must pass before administering the test. Therefore, if the officer does not observe this required twenty minute time period, it could be grounds for not admitting the breath test results into evidence.