When driving a car in the United States, you give “implied consent” to submit to a breathalyzer test. That means you cannot refuse the test without facing a penalty. However, you may not be aware that the portable breathalyzer police have in their pockets are completely different from the kind at a police station.
So why do those tests exist? Can police use portable breathalyzers against you?
What is Admissibility?
In law, having evidence doesn’t mean you can use it to build a case. It must be admitted into the record through a process of establishing the type of evidence, its authenticity, its validity, its accuracy, and the witness’s familiarity. If those criteria aren’t met, an attorney could object to it going into the record. That means, even if an attorney has evidence that would prove their argument, they still need to argue to let the judge or jury see it.
The same applies to readings from portable breathalyzers. Most experts agree that portable breathalyzers are not accurate enough to determine whether someone’s BAC meets the legal limit. For that reason, Ohio defense attorneys can fight to ensure results from a portable breathalyzer are not used as evidence.
However, portable breathalyzers can demonstrate probable cause. This means the field test’s results gave the officer sufficient belief that you were driving under the influence.
What Really Matters?
Ultimately, the portable breathalyzer test will not matter in most cases. What really matters are the tests at the police station. The desk-mounted breathalyzer is far more accurate than its portable counterpart, and its results are admissible in court.
Similarly, blood tests are considered to be the most accurate. However, you have no obligation to submit to this testing until the police produce a warrant approved by a judge. This comes after a 2016 Supreme Court decision that placed limits on the implied consent law.
Remember that the best thing you can do after a DUI arrest is to remain silent and request access to your attorney.
It’s always a good idea to have experienced legal representation when facing a DUI charge. If you’d like an experienced Dayton DUI attorney from L. Patrick Mulligan & Associates, LLC to evaluate your case, please send us an email or call (937) 685-7006.