If you were recently arrested and charged with driving under the influence, or DUI, in the State of Nebraska you are facing some serious judicial and non-judicial penalties if convicted. For this reason, it is in your best interest to mount a zealous defense to the charges against you if possible. Although the law enforcement officer that arrested you and the prosecuting attorney would likely have you believe that the case against you is iron clad, the reality is that it may not be. Only an experienced Nebraska DUI lawyer can review the specific facts and circumstances of your case and provide you with advice regarding your chances of avoiding a conviction; however, one possible defense you may have is to challenge the results of the breath test. Contrary to what many people believe, the results of a chemical breath test are not always as accurate as the State would like you to believe either.
How a Breath Test Works
The basic concept behind a breath test is simple enough; however, in practice there are many things that can go wrong. When you consume alcohol, the alcohol enters your blood stream and effectively circulates throughout your body, including through your lungs. Therefore, when you breath, your breath will include alcohol if you have any in your system. A breath test is a machine that measures the amount of alcohol in the breath you expel. A subject breathes into the machine and then the machine “captures” the expelled breath and calculates how much alcohol is present in it. If your breath contains more than 0.08 percent breath alcohol concentration, or BAC, you are over the legal limit.
What Can Go Wrong with a Breath Test?
Breath test technology is hardly new. It has been amount for decades and each new version ostensibly gets better and better at accurately calculating BAC levels. Under perfect conditions, this is likely true. The problem is that conditions are rarely perfect, meaning that the results of a breath test are rarely perfect. Some common issues your DUI lawyer might raise when challenging the results of your breath test include:
- Operator error – like all machines, the accuracy of a breath test depends entirely on the human operating the machine. The law enforcement agent who conducts he test should be certified to do so. All too often, however, that is not the case. The officer might have some basic training on the machine but lack official certification. Not only could this result in errors but it provides an excellent way to challenge the results because it usually goes directly against the law enforcement agency’s own policies.
- Machine calibration – a breath test machine is supposed to be calibrated on a regular schedule. Frequently, however, this does not occur. If the machine has not been calibrated correctly, the results could be very inaccurate.
- Foreign objects in your mouth – if you had anything in your mouth at the time of the test (something the officer is supposed to check prior to administering the test) it could skew the results.
- Medical conditions – certain medical conditions can cause your body to metabolize alcohol differently than most people. That, in turn, could produce an inaccurate test result.
- Rising alcohol level defense — The rising alcohol level, or RAL, defense is based on the science of alcohol absorption. When you drink alcohol, or ingest it in any way, the alcohol is absorbed into your blood stream. As it is absorbed your blood alcohol concentration, or BAC, rises. Eventually, you will reach what is referred to as your “peak absorption rate”. If, however, you take a breath test before you actually reach your peak absorption rate the results of the test could produce a false result, indicating that your BAC was higher than it actually was when you were operating a vehicle. If you drank just prior to driving, the RAL defense may be applicable.
As you can see, there are a variety of possible avenues your DUI lawyer might take to challenge the breath test result you received when you were arrested. Do not just assume that because your breath test result was over a 0.08 percent you have no defense to the charges against you.
Contact Us
If you have been charged with driving under the influence in Nebraska contact the Petersen Law Office 24 hours a day at 402-513-2180 to discuss your case with an experienced DUI defense attorney.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
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