Can You Challenge a Breath Test in Court?

If you’ve been charged with a DWI, you may wonder if you can challenge your breath test. It’s important to ask these types of questions so you’re aware of your rights and how you can fight your charges. The team at McMinn, Logan & Gray can answer these questions and more.

Continue reading to learn more about challenging breath test results in court:

Hi, I’m attorney Derek gray of McMinn, Logan & Gray. We are a criminal law firm located here in Winston Salem, North Carolina, and this is our FAQ series. So today’s question will deal with DWIs or driving while impaired charges. Specifically, the question is: can you challenge a breath test in court?

And so, as we always like to start off with, you want to address the law, as it’s listed in North Carolina. Specifically, we’re going to look at North Carolina general statute 20-139.1. This is going to deal with the actual Intoxilyzer Test that happens down at the station. The state has to adhere to the procedure set out by the Department of Health and Human Services. Furthermore, the officer administering the test must be qualified to do so. There’s a certification process that they have to go through.

Also, there’s what we call a PBT, which is the portable breath test. The portable breath test is the one given on the side of the road. Typically, this is governed by the Department of Health and Human Services. I believe it is subchapter 41 Title 10A which will also address the Intoxilyzer as well. But specifically, the state will have to jump through certain hoops to ensure this test is admissible. In court, there’s a certain procedure that the police officer has to follow and certain foundations that the state will have to lay in order for, in the case of the PBT, the presence of alcohol to be given to the court. And in the case of the Intoxilyzer, which is the one you take down at the station, there are particular procedures law enforcement officers must follow for that actual number to come in. So to answer your question: it’s really a facts and circumstances test, or case, in terms of whether you will successfully be able to challenge the breathalyzer test results coming into evidence.

One of the best ways to do that would be by looking at chapter 20-139.1 as well in conjunction with subchapter 41 Title 10A of the Department of Health and Human Services. And the reason being is that it lays out, step by step, the procedure the state has to go through to make that number admissible. And as it relates to the PBT, it goes step by step on what the state has to show in order for the presence of alcohol to be admissible in court.

And so this will be things like, what type of device did the officer use, specifically as the PBT what type of breath testing device was used? When was it last calibrated? Was there a gas canister? Was it some type of alcohol solution? When was it last changed? And so they’ll have to be able to answer these questions to lay the foundation specifically for the portable breath test to come in.

Now, as it relates to the Intoxilyzer down at the station, that’s going to be things like, were you afforded the opportunity of having your witness present? If so, did they wait the required amount of time that they needed to wait in order for your witness to be there and observe the actual breath test itself? Did they advise you of your rights waiver? What are the ramifications if you actually do not take this test? So these are things procedurally that the state must do every time they administer this test. And then, if they don’t, that could affect the admissibility of whether that number comes in. And so it’s really a facts and circumstances test per that particular facts scenario.

So to answer the question: can you challenge the breath test coming in? Absolutely. Will you be successful? It really depends on the facts and circumstances of that particular situation.

So, guys, I hope this helps. There’s a lot more to go into specifically as it relates to that, but if you have any further questions or have been charged with a DWI, please don’t hesitate to reach out to my firm. I would love to help you and guide you through this process.

To ask more questions or to get started on your case, schedule a free consultation with a criminal defense attorney at McMinn, Logan & Gray.

Author Bio

Derek M. Gray

Derek Gray is a Partner of McMinn, Logan & Gray, a North Carolina criminal defense law firm. With more than 15 years of experience in criminal defense, he has zealously represented clients in various legal matters, including DUIs, misdemeanors, felonies, domestic violence, and other criminal charges.

Derek received his Juris Doctor from the North Carolina Central School of Law in 2007 and is a member of the North Carolina State Bar Association. With his experience as a former Assistant District Attorney, he has represented more than 1,000 criminal defense clients in North Carolina and received more than 100 5-star Google ratings.

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