Although you should never, ever drink and drive, there are times when you may be able to legally beat a Breathalyzer test.
Breathalyzers measure the concentration of alcohol in your breath, which is basically measuring the amount of evaporated alcohol you push out into the air while you're breathing. However, there's nothing you can physically do, like chewing gum, to manipulate the reading.
Although pounding water when you get pulled over won't affect the reading, you can challenge the results of the Breathalyzer in court.
1. Opt for a blood test, but risk losing your license. If a cop pulls you over in California and smells alcohol on your breath, he can ask you to take a blood or Breathalyzer test. You can say "no" if you want to, but under California's Implied Consent laws, refusing to take either test will cause you to lose your license. This is because you consent to either alcohol test when you obtained your driver's license. Although waiting for a proper medical professional to take your blood may buy you a little time to "sober up" and beat a chemical test, blood tests provide accurate readings and may be more difficult to challenge in court than Breathalyzers.
2. Failure to properly administer the Breathalyzer. A good DWI/DUI attorney or legal aid attorney can argue on your behalf that the police failed to properly administer the Breathalyzer. If they're successful, your Breathalyzer reading could get thrown out. Case in point, the San Francisco cops' failure to conduct regular tests on the device's calibration caused nearly 1,000 DUI convictions to be questioned.
3. Unreliable reading. Improperly calibrated devices can help you beat a Breathalyzer reading and could result in an overturned conviction. Although they give a relatively accurate blood alcohol concentration (BAC) reading, they need to be regularly calibrated and maintained to make sure that the readings are accurate and reliable. A Breathalyzer that isn't functioning properly won't be able to produce reliable results that prove your level of intoxication. In those circumstances, unreliable readings will likely be inadmissible in court and the police must prove your intoxication through other forms of evidence, like a field sobriety test or blood test.
- Portable drug test a new addition at New Year's DUI checkpoints (The Los Angeles Times)
- Can You Beat a DUI Charge on a Technicality? (FindLaw's Blotter)
- DWI Suspect's BAC Too High for Breathalyzer: Cops (FindLaw's Blotter)
- What Does Pleading Not Guilty to a DUI Mean? (FindLaw's Los Angeles DUI Blog)