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North Carolina DWIs: Defenses to a Failed Breath Test

If you were pulled over for suspected driving while impaired (DWI) in North Carolina, you may have been given a breathalyzer test to determine your blood alcohol concentration (BAC). If you failed this test and were arrested for a DWI, you probably think that your case is over. However, this is not the case: you can challenge your test.  

What is a Breathalyzer Test?

A police officer may administer a breathalyzer test (either a portable one at the scene of the suspected DWI or at the police station shortly thereafter) to someone suspected of impaired driving. A breathalyzer is a device that estimates the BAC in your body by measuring the amount of alcohol on your breath. If the result is a BAC over the legal limit in North Carolina, the officer will likely arrest you for a DWI and take you down to the police station.

Failed breathalyzer results are a major factor in determining the outcome of your DWI case. Even though the results of a breathalyzer test can be used against you in court, neither the breathalyzer machine nor the officer administering the test is 100% reliable. 

What does this mean for you? You can challenge your breathalyzer test results.

Potential Defenses to a Failed Breath Test

An experienced North Carolina criminal defense attorney, I will review the facts of each failed breath test case to determine how the test was administered and analyzed. Specifically, I will look for the following errors, among others, that can be used as a defense to a failed test:

Administrative Errors:

  • Did the officer use a device approved by the State?
  • Did the officer properly administer the test to you? 
  • Was the testing device property maintained and calibrated and was it functioning correctly when used? 
  • Was the officer who administered the test properly trained and certified as how to administer it? 
  • Were you properly informed by the officer that you had the right to refuse the test?

Errors In the Results – the following factors might produce false positives: 

  • Do you have a medical condition, such as diabetes or hyperglycemia, that could affect the results? 
  • Do you follow a low-carb/high-protein or ketogenic diet?
  • Did you smoke a cigarette or use mouthwash before the test was administered? 
  • Did you vomit, burp, eat, or drink shortly before taking the test? 
  • Do you have acid reflux? 
  • Do you take certain medications (such as some used to treat allergies, Crohn’s disease, asthma, and others)?

If any of the above administrative errors or factors that could affect the validity of the breathalyzer results are present, the results of your failed breath test could be inadmissible in court. 

Contact a North Carolina Criminal Defense Attorney Today

A failed breath test does not automatically mean a conviction. If you’ve been charged with a DWI in North Carolina, call me. I have served hundreds of clients through Wake, Johnston, Harnett, Orange, Sampson, Lee, and Chatham Counties and I’m ready to meet with you to discuss your case. 

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