Problems With Breath Results

The State may have many problems in proving their case against you in an administrative hearing. In order to support an administrative suspension of your driver’s license the Department of Revenue  must prove that the person arrested had a BAC (Blood Alcohol Content) of .08% or higher.

Section 302.505 Revised Statutes of Missouri states, “The department shall suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person’s blood, breath, or urine was eight-hundredths of one percent or more by weight, based on the definition of alcohol concentration in section 302.500.” RSMo 302.505.
There are two main points that the law addresses and an experienced DWI Defense Attorney can attack. (1) the arresting officer must have probable cause to believe that the person he/she arrested was driving while intoxicated and (2) that the reading of .08% BAC or higher was accurate.
The Missouri Department of Health (“DOH”) promulgates regulations that control how breath testing is done in the State of Missouri. The DOH authorizes law enforcement of the state to use only three machines to breathalyze DWI suspects. Those machines are the Intoxilyzer 5000, the Datamaster and the Alco-Sensor IV with Printer. Every machine used must be properly calibrated within prescribed intervals before the test results of that machine can be considered valid. Additionally, the DOH trains and certifies police officers to administer breathalyzer tests. Only a certified breathalyzer operator is permitted to administer the breathalyzer test. If the operator is not certified or their license is expired the test result is invalid. Finally, there is a specific procedure that the testing police officer must follow as it pertains to the suspect and how they operate the machine before the test results are valid.

Here are just some of the issues that can invalidate a test result. Though these are infrequent, every aspect of your test must be evaluated by a DWI Defense Attorney in order to aggressively represent you and give you the best chance of retatining your driving privileges.

  • The breathalyzer used was not the approved model;
  • The breathalyzer operator was unlicensed or his/her license expired;
  • There was no documented 15 minute observation period;
  • The machine was not properly calibrated or documentation of the calibration is missing;
  • The last date of the calibration of the machine falls outside of the statutory parameters
  • The machine gave an error code after the test and the testing officer did not follow proper procedure before retesting.
Here is a recent real life example of what can go wrong with the State’s case and how a DWI Defense Attorney can capitalize on the facts to show that the test result can not be considered to suspend our client’s driver’s license. Recently we represented a client in an administrative hearing who was arrested for a DWI and the officer requested that our client provide a breath sample. Our client complied and blew into the machine. The machine displayed a result of 0.00% BAC and did not display any error codes. Thinking that the machine malfunctioned, the police officer requested a second breath sample. This time the BAC was .18%, more than twice over the legal limit.  We subpoenaed the arresting officer to the hearing and under oath got him to agree that (1) the machine did not show any error codes, (2) he did not know whether the machine was broken after the first test, (3) even if the machine was broken, no one attempted to fix it before the second test, (4) he did not have any basis in believing that the second breath result was any more reliable than the first. In fact, the police officer testified that a week prior to the incident at issue, the machine “misfired” in the same manner. This piece of testimony was very helpful in our final argument that the machine was broken and the .18% test result can no be considered because there is no proof that it was accurate. Conversely if the machine was not broken, then the first result of 0.00% should be considered. After the hearing, our client got his driving privileges back.

Back to DWI Administrative Action Page.

If you have been issued a Notice of Suspension/Revocation contact a DWI Defense Attorney using the form below or call 314-529-1252.


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