Yes. In general, all Breathalyzers and breath test units used by law enforcement in California can be admitted as evidence in court. However, not all devices are treated equally.
Breathalyzer is a specific brand of breath test device, but there are many others. In the law, we divide all breath tests into two categories:
- PAS tests. PAS stands for Preliminary Alcohol Screening and is done with a small portable device during the traffic stop. These tests are done before arrest, as part of investigating the possibility of DUI. You can refuse these test if you want.
- All other breath tests. Once you are arrested, you may also be asked to take a breath test. This test will use more rigorous equipment that complies with all of California’s Title 17 rules. You are not allowed to refuse this test; you can request a different kind of test (blood sample or urine sample), but if they are not available, you must provide the breath sample.
The second kind of test, which is done after arrest, is the kind that prosecutors prefer to use as evidence. These tests are done in more controlled settings, with equipment that is considered more reliable. They are stronger evidence and will always be the prosecutor’s primary chemical evidence against you, if available.
The pre-arrest PAS, however, is what most people mean when they say Breathalyzer. This kind of test can also be submitted as evidence at trial. It is a scientifically tested device that is usually accurate, but not always. As such, it is open to more questions and your lawyer can attack its use.
Just because breath tests are admissible in general doesn’t mean they will be allowed in your particular case. You can challenge the breath test and potentially get it excluded from trial.
How can I block the breath test evidence in my DUI case?
To block the breath test evidence, you need some grounds on which to challenge its validity. This could include:
- Violation of any Title 17 procedures (the rules police must follow to administer chemical tests)
- Evidence that the device was not properly calibrated or maintained
- Police did not explain to you that the PAS was optional before asking you to take it
- Mouth alcohol, a medical condition, or rising BAC were a factor in your breath test results
If there is any reason to think that the breath test may be inaccurate, or that a procedure was violated, your lawyer can file a motion to suppress the evidence. The judge will hear both sides and make a ruling. If the judge suppresses the breath test, it cannot be used as evidence in court.
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