Absolutely not. Granted, if you fail a breath test, the odds shift in favor of the state. The conviction rate in breath test cases is over 80%. In contrast, the conviction rate in refusal cases is about 40%. Additionally, modern Breathalyzers are very sophisticated and reliable devices. But as we all know, no gadget is 100% accurate 100% of the time.

If you failed a breath test, a Calvert County criminal defense lawyer from the Law Office of Robert R. Castro has limited options. However, options still exist, as outlined below. Usually, these defenses generate a positive result in breath test DUIs. This positive result could be a reduced sentence, a plea to a lesser-included offense, a not-guilty verdict at trial, or even a complete dismissal of charges.

Procedural Defenses

All DUIs, especially Breathalyzer cases, often involve Fourth and Fifth Amendment violations. Procedural defenses are often very effective. If a substantive defense may apply (more on thyat below), the state can often obtain additional evidence to bolster its case. But no one can go back in time and correct a procedural error.

Illegal stops may be the most common Fourth Amendment violation. Officers must have reasonable suspicion to detain motorists, at least in most cases. Reasonable suspicion, or an evidence-based hunch, is often shaky.

A cart-before-the-horse profiling stop is a good example. Frequently, the most important question a St. Mary’s county criminal defense lawyer asks an officer is “What initially drew your attention to the defendant?” If the officer says anything other than “s/he committed a traffic infraction or other offense within my plain view,” such as “s/he didn’t look right,” that stop is illegal under the Fourth Amendment.

In that situation, the officer had a hunch that was later substantiated with evidence, not an evidence-based hunch to begin with.

Illegal interrogations are the most common Fifth Amendment violation. When officers approach drivers, most drivers do not reasonably feel free to drive away and leave. In other words, custodial interrogation has begun. Therefore, officers must apprise defendants of their Fifth Amendment rights, at least in most cases. A failure to do so could invalidate the arrest and any evidence officers subsequently obtain, such as a breathalyzer test result.

Substantive Defenses

Despite all its bells and whistles, today’s Breathalyzer is basically an updated version of a 1920s Drunk-o-Meter. The DOM, like most other mechanical devices of that era, had serious flaws. Some of these flaws have carried over to breathalyzers, such as:

• Mouth Alcohol: If the defendant belches or burps prior to the test, alcohol particles in the stomach flood into the mouth and skew the breath test result.
• Ketone Particles: Many people, such as smokers and diabetics, have high ketone levels. Most breathalyzers misread ketone as ethanol.
• Unabsorbed Alcohol: When people drink, the alcohol stops in the liver before it goes into the bloodstream. As a result, recent alcohol consumption shows up on breath tests but not blood tests.

To drive home these flaws with jurors, a Waldorf, MD, criminal defense lawyer often partners with a degreed chemist or other professional.

Contact a Dedicated Calvert County Lawyer

An arrest is not the same thing as a conviction. For a confidential consultation with an experienced criminal defense lawyer in La Plata, MD, contact the Law Office of Robert R. Castro, 2670 Crain Highway #411, Waldorf, MD 20601. You can also call us at (301) 870-1200 or go online.

This article has been provided by the Law Office of Robert R. Castro. For more information or questions contact our office to speak to an experienced lawyer at (301) 870-1200.