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BREATH TEST FAILURE
Q: "I really didn't think I was drunk, and I failed the test. Now what do I do?"
A: A failed breath test is not the end of your defense, and you never are required to plead guilty. Some people, even some lawyers, believe that if you fail a breath test, the case is over, and there is nothing you can do except plead guilty. The court decisions in such cases as Mata v. State, Bagheri v. State, and Mechler v. State have made the use of breath testing in court troublesome for prosecutors and judges. In fact, sometimes they do not get to use breath or blood test evidence at all, even though you failed the test! It is on this very important point that your DWI lawyer becomes most valuable because he or she can use the law to see that you get a fair trial and suppress the breath test or its backward extrapolation to the time of your arrest. The crime of DWI requires proof that you were .08 at the time of driving. Your breath test was taken later, and you cannot be found guilty of testing while intoxicated. The crime is driving while intoxicated. The science on this point is very clear. Your body changes with time, and your alcohol concentration rises as well as falls over time. Ordinarily there is not enough information for the prosecutor to reliably prove what your alcohol concentration was at the time of driving.
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