DUI Breath Test

Breath tests are used very frequently by law enforcement to help them determine whether or not a driver they suspect of being under the influence actually is. While this is certainly a useful tool for getting potentially dangerous drivers off the road, there are many cases in which a false reading has led to innocent drivers being arrested. The information compiled here will answer some of the basic questions regarding the administration, results, issues with and defenses of breath tests in Nevada. While we strongly encourage any driver who has been charged with a DUI to seek experienced legal counsel, anyone who has been arrested for a DUI following what they feel were faulty breathalyzer results should contact an attorney immediately.


What is a Breath Test?

If you have been pulled over by the police and they have reason to suspect that you are driving under the influence of drugs and/or alcohol, there are three different ways that your blood alcohol concentration (BAC) can be tested and measured – blood, urine or breath tests.

The most common and frequently used of these is the breath test, which is performed using a small device called a breathalyzer. These tests are so prevalent because they are simple to administer, portable and provide an immediate result, making them more efficient and more accurate for roadside DUI tests than field sobriety tests.


What Equipment Does Nevada Use to Administer Breath Tests?

The current breathalyzer used in Nevada is the Intoxilyzer 8000EN, which uses infrared spectroscopy to analyze your breath. Taking a breathalyzer test requires you to blow forcefully into the device, which will then collect your breath and measure your blood alcohol concentration. Breathalyzer devices are simple and non-invasive, but unfortunately, they are also known to sometimes provide inconsistent and inaccurate results for a variety of reasons.


What Can Affect the Accuracy of Breathalyzer Results?

Inaccurate results can be caused by medical conditions, the residue from recently used products that contain alcohol, conditions of the body that are the result of specific diets or dietary restrictions, and more.

Some of the medical or residual factors known to cause unreliable readings include:

●      “Mouth Alcohol” (which can be the result of burping or vomiting, taking medications that contain alcohol, chewing tobacco, mouthwashes or breath sprays, etc.)

●      GERD, heartburn, acid reflux and other digestive disorders

●      Diabetes, hypoglycemia, low carb diets, and fasting

Inaccurate readings can also be the result of mechanical issues with the breathalyzer device that was used. Some examples of this include:

●      Improper calibration, inspections, and maintenance of the device

●      Improper administration of the test (including a test given by a technician that was not qualified through training and certification)

It is through the examples above and other known concerns that can skew the results of these devices which can allow the results of your own test to be contested in court. If there is reasonable doubt regarding the accuracy of the results that led to your arrest, it is possible to have those results excluded from evidence, which can lead to a reduction of your charges or the dismissal of your case.


Can I Refuse to Take a Breath Test?

It is in your best interest legally to submit willingly to a breath test. Nevada’s implied consent law (NRS 484C.160) requires that any driver operating a vehicle on the highway or in an area of public access who is suspected of being under the influence must submit to a breath test, as well as any other chemical test as requested by law enforcement. Refusing to take a breath test when you are pulled over will result in your immediate arrest for driving under the influence and your driver’s license will be suspended.


What is the Difference Between a Preliminary Test and an Evidentiary Test?

If you are suspected to be driving under the influence, you will typically be required to submit to two breath tests:

Preliminary Breath Test

This test is what you will be asked to submit to shortly after you have been pulled over, as soon as the officer who stopped you has reason to believe that you might be under the influence. A breath test is the most commonly used method for a preliminary test, although you can request to be given a blood test.

It’s worth noting that you will also be required to submit to a blood test if you have prior DUI convictions or if you are being asked to submit to a chemical test because you were involved in an accident that resulted in the severe injury or death of others. You will also be required to have a blood test if the officer administering the test believes you are under the influence of drugs rather than alcohol.

If this test shows that you are over the legal BAC limit of 0.8%, you will be arrested for a DUI. Your results from this test can be used as evidence in court that there were reasonable grounds to arrest you, but not as actual evidence that you were driving under the influence.

Evidentiary Breath Test

The second of the breath tests that will be required of you if you have been arrested for a DUI is the evidentiary breath test. This will be administered at a police station and the results of this test can be used as evidence in court that you were driving under the influence. There should also be a 15 minute period of observation by the officer administering this test to ensure that you have not consumed or expelled anything from your mouth containing alcohol.


If you or someone that you care about has been charged with a DUI following a faulty breath test, you are not the first. Fortunately, this means that there are many cases in which the results of a faulty test get excluded from evidence and the charges are dropped. If you would like to speak to someone about the circumstances surrounding your DUI arrest, we invite you to contact our offices today. We offer free case evaluations and want to hear your side of the story.


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