What Procedures Are Used For The Evidential Breathalyzer Test?
There are two different breathalyzer tests. The first test typically takes place on the scene, using a portable breathalyzer at a scene of a suspected DUI. More often than not, these breathalyzer tests are not allowed into evidence at a trial, but they’ll allow it into the hearing as far as probable cause to ask someone to take a further breathalyzer. Most police stations don’t pay the money to have the portable breathalyzers certified, because they’re over $1000, but there has to be some reason for the officer to be asking you to take a breathalyzer.
Presumably, the officer has pulled you over, and he or she has smelled alcohol on your breath. You have bloodshot eyes, and the officer suspects there might be alcohol in place. The officer is going to ask you to step up and take the breathalyzer. You should understand that you do not have to take a breathalyzer, ever. You always have a right to refuse. They might tell you that your license will be suspended immediately, and for double the time, but this is untrue. Suspensions never take place immediately. The rules are different in Wisconsin, but here in Illinois, if a judge feels there was probable cause, the suspension’s going to take place 46 days after you were pulled over. The officer is going to ask you to blow into the machine, and if you decide to do this, you have to blow a single long, sustained breath.
If you try and circumvent doing this, by making it sound like you’re blowing cooperating, but instead you’re not blowing enough air into the breathalyzer, it is going to register as an insufficient sample. If you do that enough times, the officer is going to write that down as a refusal. The officer will tell you to take a deep breath, and blow into the machine as hard as you can until they tell you to stop. This is usually about ten seconds. If you have something like asthma, or bronchitis, you should let the officer know that you can’t do that, and it might be a valid reason to come to at some later point in your case.
The second breathalyzer test is down at the police station. Once you get to the station, they will want you to repeat the test on a certified machine. Before they do that, they’re going to have to redo what’s called a Warning to Motorists. This is going to explain to you the full the possible ramifications of failing this test. After the officer reads that to you, there is a mandatory 20-minute waiting period. During this time, you’re not allowed to burp, chew gum, smoke a cigarette, put anything at all in your mouth, or throw up. Some people will do that a couple of times and just let out a loud burp, and then they try and buy themselves time. You can try doing this, but the chance that the 15 or 20 minutes in extra time that you’ll get will noticeably lower your blood alcohol content is very slim.
If you do it more than once or twice, the officer will write it down as a refusal. It will then be a question up to the judge whether you truly refused or not. You always do have the right to refuse to take a test. My advice is, politely refuse to take any test if you’re in fear that you might be even borderline, whatsoever.
Why Is The Observation Period So Critical? What Happens If Someone Doesn’t Abide By It?
If the observation period is not met, the officer must restart the 20-minute clock. If you hiccup, or you burp, or you throw up a little bit, they’re supposed to give you an additional 20 minutes starting from that time. Someone’s supposed to keep you in observation during that time. If the officer who is supposed to be watching you leaves the room, then you should keep that in mind when you’re talking to your attorney.
After that period, if you tell the officer that you want to speak with your attorney, they will warn you against it. The officer will tell you that it is your only chance to take the breathalyzer, and if you don’t, they will mark it down as a refusal. Additionally, if you don’t take the test after the observation period, the machines will actually time out. The officer will start the machine at the beginning of the observation period. If no breath sample is given, the machine will print out on a piece of paper that it timed-out for lack of sufficient sample.
If you choose to take the test, the procedure will be the same as with the portable unit. You will need to take a couple of deep breaths, and blow hard and steadily into the machine. If you keep blowing insufficient sample, the officer will write that up as a refusal. The officer must also read you the full Warning to Motorists. This is something that quite a few officers don’t do. Even though the instruction sheet is one page, it has very tiny writing. It would take the officer 3-4 minutes to read the entire thing. This is also something you might want to keep an eye on, because it might be a way to get rid of the suspension, if in fact the officer never read you the full Warning to Motorists. This is the best way to beat these charges every time. I’ve personally beaten many cases this way.
If you’ve got a language barrier, you want to tell the officer very forcefully that you don’t understand what they are saying, and then stop talking. You don’t want to talk with the officer, even if you do understand them. You should know that case law allows them to read it to you, even if you don’t understand English, or even if you’re unconscious. This is always something that you can contest.
In my experience, it is better to refuse the breathalyzer if you are close to being over the legal limit. If you don’t, you’re going to suffer the consequences of a suspension, but in the long run it’s better. You can live with a suspension, if it’s your first DUI. You can usually get a breath device put in your car, so you can keep driving. But if you give them that bit of evidence, and you’re .08 or greater, you’ve just made your case much harder.
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