A Former Prosecutor Defending Clients in Wyoming and South Dakota

Can a Wyoming DWUI Defense Attorney Challenge a Breathalyzer Test?

If you were stopped and suspected of driving while under the influence of alcohol (DWUI), the police officer probably asked you to submit to a breathalyzer test. If that test was positive for the presence of alcohol, you were probably arrested and asked to submit to a second test at the police station.

The first test only detects the presence of alcohol and is not admissible in court. But the second test, if administered properly, may be admissible to show that you were intoxicated. The question: can your DWUI defense attorney challenge a breathalyzer test? The answer: yes, in some circumstances.

The Breathalyzer Tests for Alcohol, Not Other Drugs

A breathalyzer only tests for alcohol. If the arresting officer suspected that you were under the influence of another intoxicating drug, you were probably asked to submit to a test of your blood or urine. Therefore, if you were suspected of driving while under the influence of drugs, these methods of challenging breathalyzer evidence will not apply.

Why Challenge a Breathalyzer Test as Evidence of Intoxication? 

Evidence of your intoxication is often key in securing a DWUI conviction. While the police officer gathered other forms of evidence at the scene, including the officer’s opinion regarding your level of impairment and your performance on field sobriety tests (FSTs), breathalyzer evidence is the most conclusive. This means that if your Wyoming DWUI defense attorney is able to successfully challenge the breathalyzer evidence and have it excluded, there is a much higher likelihood of avoiding conviction, either through a Not Guilty verdict, or by negotiating a more favorable plea bargain.

Whether your Wyoming DWUI defense attorney will be able to successfully challenge the breathalyzer test will, of course, depend on the specific facts and circumstances of your case. But, in general, there are five different ways to challenge the breathalyzer test evidence.

The Breathalyzer Test Is Not Reliable

Your Wyoming DWUI defense attorney may be able to challenge the reliability of the machine that was used to test for the presence of alcohol in your blood. Depending on the specific model that was used, the breathalyzer may have reported an inaccurately high BAC (Blood Alcohol Content). Radio frequencies in the air, such as those emitted from police officer’s walkie-talkies, have been shown to result in inaccurately high BAC readings. Likewise, health and environmental factors play a role in the accuracy of a breathalyzer test. Certain medical conditions, like diabetes, fasting, or smoking, can result in inaccurate readings.

The Breathalyzer Was Not Properly Calibrated

Just like any other electronic measurement instrument, a breathalyzer must be calibrated in order to provide accurate readings. If your Wyoming DWUI defense attorney can successfully show that the breathalyzer was not checked for accuracy or did not receive proper maintenance, the breathalyzer test result may not be considered as evidence. Specifically, your attorney will ask to see the maintenance calibration records. If these records show that the machine was not properly calibrated to give reliable results every time, the prosecutor will be forced to rely on other evidence, like testimony from the police office, in order to secure a conviction.

The Police Officer Was Not Properly Trained to Use a Breathalyzer

For the breathalyzer test result to be reliable, the police officer administering the test must be properly trained. If your Wyoming DWUI defense attorney can call into question the training of the officer, whether at trial or through pre-trial motions to exclude certain evidence, the judge might not admit evidence of the breathalyzer test. Without this evidence, it will be more difficult to secure a conviction, which might prompt the prosecutor to consider dropping the case, or offer a more favorable plea bargain.

Use of the Breathalyzer Was an Illegal Search

In any criminal investigation, including a DWUI charge, the arresting officer must have probable cause to continue with the search. To have breathalyzer test results admitted in court, the officer must have had a reasonable suspicion to pull you over, and must have had probable cause to believe that you were intoxicated.

If your Wyoming DWUI defense attorney can call into question either of these two elements, the judge might exclude evidence of the breathalyzer test result.

The arresting officer must be able to establish that there was a reasonable suspicion that you were breaking the law. Usually this comes in the form of the officer’s testimony that you were driving erratically, or violated some other traffic law, such as speeding, or running a stop sign or stop light.

The arresting officer must also be able to demonstrate that there was probable cause that you were intoxicated. Typically this is the officer’s testimony that your speech was slurred, that there was a smell of alcohol coming from inside the vehicle, or that you appeared to be visibly intoxicated.

If your Wyoming DWUI defense attorney can cast doubt on the existence of either of these two elements, you may be able to challenge the admissibility of the results of the breathalyzer test.

The Officer Administering the Test Did Not Testify

Under the Sixth Amendment, you have the right to confront your accuser. In the context of a DWUI trial, this means that your attorney must be allowed to cross-examine the officer who performed the breathalyzer test. If the officer does not appear in court, or if there were two officers present when you were arrested and only the one who did not perform the test is called to testify at trial, your attorney can ask the judge to exclude evidence of the breathalyzer test because allowing evidence of the breathalyzer test results would violate your constitutional rights.

Contact an Experienced Wyoming DWUI Defense Attorney Today

The consequences of a DWUI conviction are severe. If you’re facing charges for DWUI in Wyoming, it’s important that you have a skilled and experienced Wyoming DWUI defense attorney on your side, fighting for your one chance at justice.

Contact Just Criminal Law today to schedule an appointment with my team of DWUI defense professionals.

Call 307-686-6556, email office@justcriminallaw.com, or complete the online form.

DISCLAIMER: The information contained in this article is offered for educational purposes only. This information is not offered as legal advice. A person accused of a crime should always consult with an attorney before making decisions that have legal consequences.

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