Blowing more than a .08, am I guilty?

Not necessarily. There are many ways to challenge a breathalyzer result that’s over .08, and going to trial, rather than accepting a plea agreement, may be the right approach.

First, the police must have a sufficient reason to stop and conduct the exam. Police in this country are not permitted to simply stop drivers at random and give them breathalyzer tests. If you were otherwise driving properly, your car inspection was valid, and so forth, you may be able to challenge the DUI conviction because the police lacked a reason to stop you and test you.

Second, the prosecutor must show that the state’s breathalyzer machine was functioning properly and that the testing of the defendant was done in accordance with appropriate procedures.

If a criminal or DUI defense attorney can show one or more of the following elements, he may be able to show that the test was administered incorrectly and the results are scientifically unreliable.

For instance:


  • The person administering the test was not properly trained or qualified.
  • The person did not observe the driver long enough prior to the exam to ensure that the driver did not eat or put anything in his or her mouth that would alter the results.
  • The driver suffers from a disease, such as diabetes, that may produce artificially high results on a breathalyzer.
  • The machine was improprerly calibrated
  • The breathalyzer exam was given too long after the initial traffic stop.
  • The breathalyzer machine was not plugged into a dedicated eletrical circuit.

There may be other reasons to challenge the breathalyzer machine’s results.