You got pulled over. You took a breath test, and you blew 0.08 percent or above. As a result, you got arrested for driving under the influence (DUI). Since you failed the breath test, is your case essentially over? Or, are there still ways an experienced defense attorney may be able to help you fight your DUI charge?
In South Carolina, there are several ways to challenge the results of a breath test. While defenses are not available in every case, challenging the validity of their test results is a good defense strategy for many DUI defendants. So, can a defense attorney help you challenge your breath test?
5 Ways to Challenge a Breath Test in South Carolina
Here are five potential ways to challenge a breath test in South Carolina:
1. There Were Problems with the Test
The first way to challenge a breath test result is to challenge the test itself. There are a variety of issues that can render the results of a breath test unreliable. Some examples of these issues include:
- The testing device was not calibrated. To work properly, breathalyzer devices require regular maintenance and calibration. If the police department’s records do not show that the device used during your DUI stop was functioning properly, then prosecutors may not be able to use your test results against you.
- The police officer did not provide proper instructions. Police officers must administer breath tests according to the guidelines established by the South Carolina Law Enforcement Division (SLED). If the officer who arrested you failed to follow these guidelines—for example, if the officer did not provide proper instructions—this could also render your test results unreliable.
- The police officer did not observe the test. Proper supervision is also important for ensuring a reliable breath test result. If your arresting officer did not observe your test, then the officer will not be able to testify as to whether you took the test properly.
2. You Had Recently Eatenor Taken Something, or You Had Recently Been Drinking
Hot sauces, protein bars, chocolates, fruits, and various other foods can falsely inflate your blood alcohol concentration (BAC). So can breathe mints, mouthwashes, cough suppressants, and flu and cold medications. If you had recently eaten or taken something, this may provide an explanation for your elevated BAC that does not warrant a criminal conviction.
Likewise, if you had recently been drinking, the alcohol residue in your mouth could have falsely inflated your BAC. Since drinking does not impact your BAC right away, it is entirely possible that you still had “mouth alcohol” and your BAC was not yet above the legal limit. Or, if you did not drink enough to put your BAC above the legal limit, then mouth alcohol could explain why the test registered your BAC at 0.08% or above.
3. You Have a Medical Condition that Impacted Your BAC Reading
Certain medical conditions can also impact your BAC reading. If you have a medical condition that could have caused a “false positive” on the breath test, then presenting proof of your condition could be enough to save you from a DUI conviction. Some examples of medical conditions that can falsely inflate your BAC reading include a high red blood cell count, high ketone levels, and gastroesophageal reflux disease (GERD).
4. Your BAC Rose After the Police Pulled You Over
As we mentioned above, when you drink, your BAC does not rise immediately. Instead, it takes time for the alcohol to enter your bloodstream. As a result, if the police pulled you over shortly after you had been drinking, then your BAC could have continued to rise during your traffic stop.
Even if your BAC was 0.08 percent or above during your traffic stop, if it was below 0.08 percent when you were driving, your BAC reading is not indicative of driving while impaired. How quickly your BAC can rise depends on your body composition and various other factors.
5. The Police Violated Your Rights
Finally, let’s say the police administered your breath test properly, and let’s say that there are no alternative explanations for your high BAC. Even if this is the case, this does not necessarily mean that prosecutors will be able to use your breath test result against you.
Did the police pull you over without reasonable suspicion (i.e. based on your race, ethnicity, or gender)? Did they fail to explain your rights under South Carolina’s implied consent law? If so, then they may have violated your rights. If the police violated your rights before administering the breath test, this could render your test results inadmissible in court.
Important: Challenging Your Breath Test Might Not Be Enough
Technically, driving with a BAC of 0.08 percent or above is not considered driving under the influence in South Carolina. Instead, it is prosecuted as the offense of driving with an unlawful alcohol concentration (DUAC).
But, driving under the influence is still a crime under South Carolina law. So, what’s the difference?
To obtain a conviction for DUAC, prosecutors must be able to prove that your BAC was above the legal limit. But, to obtain a conviction for DUI, all prosecutors need to prove is that your “faculties to drive a motor vehicle [were] materially and appreciably impaired” due to alcohol consumption. This does not require evidence of an elevated BAC.
As a result, even if you are able to successfully challenge your breath test, you could still be at risk for a DUI conviction. This makes it extremely important to discuss all possible defenses with an experienced attorney.
Talk to a North Charleston DUI Defense Attorney for Free
If you are facing a DUI or DUAC charge in North Charleston, you should discuss your case with an experienced DUI defense lawyer as soon as possible. To find out what defenses you can assert in your case, call 843-225-5723 or contact us online for a free consultation today.