A law enforcement officer suspected that you were driving under the influence. You submitted to a breath test to avoid having your license suspended for no fewer than 180 days, and that breath test indicated you were intoxicated while driving. Today, your local DUI attorneys near Oklahoma City are discussing whether a failed breathalyzer test can be fought and won.
Ask Your Oklahoma City DUI Attorneys: Is a Failed Breath Test the End of the Road for Me?
You can still fight a DUI if you failed a breath test. In fact, roadside breath tests conducted with a portable breathalyzer are not considered highly reliable in Oklahoma court. Therefore, your greatest concern should be a breath test that you failed at your local police station.
How Can I Beat a Failed Breath Test?
The first step in winning a DUI case is hiring a DUI attorney with experience fighting DUI cases. Then, you need to communicate everything you can about your case, including any medical conditions you have, the type of mouthwash you use, whether the LEO observed you for 15 minutes before administering your roadside breath test, and why you were pulled over in the first place.
Other FAQs Answered
Should I Refuse a Roadside Breath Test in the Future?
Yes, roadside breath tests are notoriously unreliable and can negatively impact your case. Refusal to take a roadside field sobriety test may be offered for proof of conciousness of guilt as well in your Oklahoma DUI case. To be convicted of driving under the influence in Oklahoma, there is no need for evidence of drugs or alcohol in your system: refusal is a piece of evidence that the government can use; however, improper tests results can have a greater negative impact on your DUI case.
Although refusing the roadside breath test offered to you will result in your being served with the form “Officer’s Affidavit and Notice of Revocation/Disqualification,” you are still able to drive, so long as you contest the traffic stop or participate in DPS’ IDAP progpram. After 30 days, DPS will take your driving privileges away and you will face criminal charges, if the district attorney believes sufficient evidence exists to prosecute you for driving under the influence of alcohol. Your driving privileges will be revoked for at least 180 days, unless you participate in IDAP or appeal the driver’s license suspension, through a District Court Appeal. Unfortunatley, if you have a history of drinking and driving or driver’s license revocation, your revocation can last for up to three years.
Will I Need an Ignition Overlock Device?
Yes, you will need an ignition overlock device if you refuse a roadside breath test in Oklahoma. Following a DUI conviction, you will be forced to have an ignition interlock device installed in your vehicle for up to five years, unless your DUI defense attorney can convince the Court or the prosecutor to waive this requirement. Whether the use of such a device and the revocation of your driving privileges occurs concurrently is up to the court.
What Could Have Made My Portable Breathalyzer Blow High?
One of the most common causes of a portable breathalyzer blowing too high is mouthwash. While there are some alcohol-free mouthwashes, most of the popular mouthwashes have a very high alcohol content. Even if you spit your mouthwash out when you’re done using it, the residual alcohol can remain in your mouth for 15 to 20 minutes and cause you to blow higher than your blood alcohol content.
Residual alcohol is why it is important to let us know whether the law enforcement officer that pulled you over observed you for at least 15 minutes. Breath sprays and cough syrups also commonly have high alcohol content.
Are There Any Other Explanations for Blowing High?
Yes, there are other reasons you could have blown high on your breath test. For instance, chewing gum and dental appliances can retain alcohol in the mouth. Notably, it is important that the officer instruct you to spit out your gum if you are asked to take a roadside breath test.
Could a Medical Condition Cause Me to Blow High?
Yes, it is possible to fail a breath test due to a medical condition. For instance, diabetes can cause people to have acetone levels hundreds or thousands of times higher than people without diabetes. This can lead to false-positive results because the machine uses the presence of ethyl alcohol to determine one’s blood alcohol content. However, it cannot tell the difference between ethyl alcohol and acetone.
GERD, also known as gastroesophageal reflux disease, can also cause an individual to blow too high on a breathalyzer test. This condition caused one’s stomach contents to flow back up the digestive tract. If you have undigested alcohol in your stomach, even if you’re under the legal limit, your stomach contents can contaminate the breath sample if you suffer from GERD. Even belching can cause a false-positive test result.
Will I Have to Go to Jail if I am Convicted of a DUI?
You may have to go to jail if you are convicted of driving under the influence. Oklahoma has extremely strict DUI laws in place, even for first offenders. We’ve already mentioned that you could lose your driving privileges for up to three years and be required to have an ignition overlock device installed in your car.
However, we should also mention that you can be jailed for up to one year and may be fined up to $1,000. If you are convicted of a DUI twice, you can be fined up to $2,500 and sent to prison for up to five years. If you are convicted of a DUI three times, you can be fined up to $5,000 and spend up to 10 years in prison. Retaining an experienced Oklahoma City DUI defense attorney is the first step in the right direction to avoid the negative consequences that often follow a DUI arrest in Oklahoma.
Are There Any Environmental Factors That May Have Affected My Test Results?
Yes, there are environmental factors that can cause one to fail a breath test. For instance, painters are often exposed to acetone at work. If you work with acetone, you could have high levels of acetone in your system even if you wear a mask. To reiterate, a portable breathalyzer can’t distinguish between ethyl alcohol and acetone, so high acetone levels will lead to a false-positive breath test.
The breathalyzer itself can also lead to a false positive. Even if the breathalyzer is only a year or two old and calibrated properly, it is possible to get a false-positive result due to a contaminated mouthpiece.
Can I Be Convicted of a DUI Even Though I Wasn’t Driving?
Yes, it is possible to be convicted of driving under the influence even if you aren’t driving. Oklahoma law dictates that you are driving under the influence if you “drive, operate, or are in actual physical control of a motor vehicle.”
You are considered in actual physical control of the vehicle if you can drive under the influence. For instance, you can be convicted if you are intoxicated while sitting in the driver’s seat with the key in the ignition. Also, you can be convicted if you are sitting in the driver’s seat and the ignition key is in your hand. Convictions for APC are quite common when you are found in control of a vehicle and intoxicated. Therefore, if you are forced to sleep in your car, while intoxicated, you should sleep in the back seat without access to the keys. These steps can reduce the likelihood of an APC charge or APC arrrest in Oklahoma; however, nothing can completely protect you from these charges other than not being found in a control of a vehicle while intoxicated.
What Is a DWI?
A DWI is a similar charge to a DUI. However, the law states that your blood alcohol content must be over 0.05 and under 0.08 to be convicted of driving while impaired. Nevertheless, in order to be convicted of driving while impaired, additional evidence is required that proves you were affected by the alcohol enough to threaten public health or safety.
If you failed a breath test, don’t give up hope. DUI attorneys in Oklahoma City can help you fight your failed breath test and assist you in obtaining the best outcome in your Oklahoma DUI case. Contact us today at Cannon & Associates for a free case evaluation, and we’ll let you know what we can do for you. We’d be glad to be Your Fierce Advocates, if we are the right fit for you.