COMMONLY USED BREATH TEST DEFENSES

CONTACT US: 513-752-0001. HERE TO LISTEN. HERE TO HELP.

  • Insufficient or broken observation period – no continuous observation for entire 20 minutes before first breath sample.

  • During those 20 minutes before the test, you burp, belch, or have slight regurgitation of gas that is relatively quiet.

  • Vomiting, belching within 20 minutes of test – no rinsing of mouth, or inadequate waiting period before retest.

  • Certain medical conditions/health issues make the breath test inherently unreliable. They include:

    1. Gastric reflux, hiatal hernia or intestinal problem (Gastro Esophagael Reflux Disease, Irritated Bowel Syndrome, or Acid Reflux Syndrome) diagnosed and treated before date of arrest;

    2. Dental condition (e.g. gum disease/gingivitis/pockets around roots, dentures or bridgework which may trap mouth alcohol and contaminate a breath machine sample);

    3. Respiratory problems (e.g. asthma, bronchitis, emphysema, or chronic obstructive pulmonary disease).

  • Your behavior or actions do not match test results.

  • The breath test room or circuitry has a problem – Radio Frequency Interference from a cell phone, officer’s radio, copy machine, or other equipment with surge capabilities.  These situations may cause the machine to give artificially high reading.  Other conditions that can affect the result are smoking near the machine, shared power supply with heater or other appliance – the machines must be on a dedicated “clean” electrical circuit.  Recently painted walls or trim can also cause interference with the test.

  • You have had recent environmental exposure to volatile fumes (lacquer, gasoline, paint, dry cleaning fluids or even 409), which have cumulative tendencies, causing chemical interference/falsely elevated results.

  • Air bag defenses – the “Tyndall effect” – diffusion of light; propellant exposure; cut lips, lung and airway irritation and fluid build-up from caustic gas propellant.

  • Video tape refutes the high reading, supports sobriety.

  • High test result from a urine screen, yet you never urinate for three to four hours or more – physiological impossibility.

  • Unintentional alcohol (e.g. Nyquil, Vicks Formula 44, lip balm, toothache drops, etc.).

  • Something in mouth that contains interfering or contaminating substance (e.g. Skoal snuff, Wintergreen gum, Altoids).

  • Officer fails to inform you that you have a right to an independent test.

  • Officer not trained or marginally trained in accordance with the standards of the Ohio Administrative Code.

  • Officer fails to follow manual or training protocol.

  • Failure to properly calibrate or maintain the machine.

  • Police report supports sobriety, or lack of investigation of alternative causes.

  • Rising blood alcohol level showing time of driving BAC would have been lower than time of testing.

  • Elevated breath temperature (e.g. caused by fever, hot tub, sauna, detention in hot sun or back of patrol car I summer, dancing, menstrual cycle, etc.).

  • Breath/blood ratio (2100:1) not proven to be your ratio.  Show how minor error gets multiplied 2100 times; 0.12 = 17/10,000,000th of an ounce.  Show how you have abnormally low blood/breath conversion ratio through testing and expert.

  • Inherent sampling variability of margin of error (e.g. 0.081 reading – state acknowledges +/- 0.03 precision problem).

  • You have blowing pattern irregularity.

  • You have been on strict high protein diet and then introduce carbohydrates, thereby triggering auto-generated alcohol production when ketones are converted to isopropyl alcohol (or the “auto-brewery” syndrome).

  • You have diabetes, are borderline diabetic or are hypoglycemic and consume alcohol in any amount, causing conversion of high acetone levels into isopropyl alcohol.

  • Officer gives ALS warnings, but then goes too far by threatening dire consequences for which there is no factual basis or misstates consequences regarding possible license suspension.

  • State fails to prove that results were obtained within the three hour statutorily imposed time (three hours after driving ended).

  • You can prove sufficient alcohol was consumed during driving, after driving ended, or before police arrived.

  • Officer gets fired, indicted, retires, goes on military leave, or moves away.

Tekulve Law

Attorney Advertising. This website is designed for general information only. Any information you obtain from this website should not be construed as legal advice, nor as grounds for forming an attorney-client relationship. You should consult an attorney for information on obtaining formal legal advice. 

© 2020 by Tekulve Law

785 Ohio Pike, Cincinnati, Ohio 45245

Tel: (513) 752-0001 / Fax: (513) 752-0289

  • White LinkedIn Icon
  • White Facebook Icon