DUI Breath Test

If you took a breath test after your DUI arrest, then you need a criminal defense attorney who understands the most effective ways of contest the breath test reading and show problems with the test. The attorneys at Brown, Bradshaw & Moffat, LLP are experienced with fighting breath test cases in Salt Lake City, and the surrounding areas in Utah.

The DUI defense attorneys at Brown, Bradshaw & Moffat, LLP understand the effects of alcohol in the human body, the operational principles of breath testing, legal aspects of chemical testing, DUI case law, and other alcohol-related laws. We know how to uncover mistakes made by the breath test operator and inspector when performing simulated tests on the instruments to test its accuracy and reliability.

For example, medical conditions such as GERD or acid reflex can cause the machine to incorrectly measure alcohol in the mouth instead of only finding the alcohol present in the deep lung air. Other important defenses exist to show that the breath test reading is not accurate or reliable. 

Our attorneys are familiar with the rules for maintaining the Intoxilyzer contained in Rule R714–500–6 of the Utah Administrative Code. Any substantial deviation from those rules can lead to the breath test reading being thrown out of the prosecutor's case at trial. In the event the court does not exclude the breath test, our attorneys can point problems that could have caused a falsely elevated reading on the breath test machine. 

In many of these cases, the goal is getting the DUI charge reduced to a less serious offense. Being prepared to take the case to trial is the best way to force the prosecutor to reduce the charge and negotiate a more favorable outcome in the case. 

Drunk Driving Breath Test Lawyers in Salt Lake City, UT

If you were arrested for DUI involving a breath test, then contact an experienced criminal defense attorney at Brown, Bradshaw & Moffat, LLP. During the initial consultation, we can talk with you about your breath test and possible defenses that might apply. We can also explain to you the consequences the breath test will have on your driving privileges and court case.

Let us put our experience to work for you. Call (801) 532-5297 today to discuss your case.


DUI Breath Testing in Utah

In breath test cases, it is the intent of the Utah Legislature to relieve the State of Utah and other governmental entities of the financial burden of calling as a witness in every DUI case of all of the public officers responsible for testing the accuracy of the Intoxilizer equipment. 

To avoid that burden in breath test cases, the prosecutor will seek to admit affidavits regarding the maintenance of a specific Intoxilizer as evidence of the proper functioning and accuracy of that Intoxilizer machine.

The defense will argue that the breath test results should not be admitted because of problems with one of the following:

  1. whether the calibration and testing for the accuracy of the Intoxilyzer was performed in accordance with the standards established by the Commissioner of Public Safety;
  2. whether the affidavits were prepared in the regular course of the public officer’s duties;
  3. whether the affidavits were prepared contemporaneously with the act, condition or event; and
  4. whether the source of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness. 

At trial, the prosecutor will seek a presumption that the test results are valid and a finding that further foundation for the introduction of evidence is unnecessary. Admitting evidence of a chemical analysis of the Defendant’s breath, the Court does not determine the accuracy of the test or analysis. Such is a question of fact for the jury alone to determine.


Difference Between Breath Alcohol and Blood Alcohol Measurements

Although breath alcohol and blood alcohol are both measured in grams, blood tests and breath tests gauge the amount of alcohol contained in different volumes so that the two tests produce similar results: “Alcohol concentration in the blood shall be based upon grams of alcohol per 100 milliliters of blood, and alcohol concentration in the breath shall be based upon grams of alcohol per 210 liters of breath.” Utah Code § 41–6a–502(2).


Certification Checks on Utah's Intoxilyzer

The rules for the instrument's certification are contained in Rule R714-500-6 of the Utah Administrative Code. Under Section D the instrument must undergo regular instrument certification checks which require:

  1. Once an instrument has been placed into service, it shall be certified by a technician on a routine basis, not to exceed 40 days between certification checks.
  2. The program supervisor shall establish a standardized operating procedure for performing certification checks, following requirements set forth in R714-500 or by using such procedures as recommended by the manufacturer of the instrument to meet its performance specifications, as derived from:
    • electrical power check;
    • operating temperature check;
    • internal purge check;
    • invalid test procedures check;
    • diagnostic measurements check;
    • internal calibration check;
    • known reference sample check; and
    • measurements of breath alcohol concentration displayed in grams of alcohol per 210 liters of breath.

Under R714-500-6(D)(3), for known reference sample checks set forth in R714-500-6-D-2-g, the instrument shall analyze a reference sample, such as headspace gas from a mixture of water and a known weight or volume of ethanol held at a constant temperature or a compressed inert gas and alcohol mixture from a pressurized cylinder.

The administrative rules provide that the "result of the analysis shall agree with the reference sample's predicted value, within parameters of the calibration set at plus or minus 5% or 0.005, whichever is greater, or such limits as set by the Department."

For example, if a known reference sample has a value of 0.100, the parameters of calibration set at plus or minus 5% would equal 0.005 (0.100 x 5 % = 0.005). Acceptable parameters of calibration using a known 0.100 reference sample would, therefore, range from 0.095 to 0.105.


High BAC (.16 or Higher)

Under Section 41-6a-505, the DUI can be subject to enhanced penalties if it is proven that the BAC was at .16 or higher. If so, the court is required to order:

  1. supervised probation;
  2. treatment;
  3. an interlock and/or ankle attached continuous transdermal alcohol monitoring device and/or electronic home confinement or describe on the record why such orders are not appropriate. 

Additional Resources

Utah Administrative Code for DUI Breath Testing on the Intoxilyzer - Visit the Utah Department of Administrative Services, Office of Administrative Rules to find R714 for Public Safety, Highway Patrol and Rule R714-500 for Chemical Analysis Standards and Training, which became effective on August 1, 2016.

Office of Administrative Rules
PO Box 141007
Salt Lake City, UT 84114-1007

Finding a Breath Test DUI Attorney in Salt Lake City, UT

If you were arrested for a DUI after submitting to a breath test, then contact an experienced drunk driving defense attorney at Brown, Bradshaw & Moffat, LLP. Our attorneys are experienced in fighting to exclude evidence of the breath test because of problems with the maintenance and calibration of the instrument. If the breath test results are admitted at trial, we can show reasons why the reading might not be accurate or reliable in a particular case.

Whether your breath test reading was more than .08 or higher than .16, we can help you understand important defenses that might be available in your case.

Call us for more information about how we fight breath test DUI cases in Salt Lake City, Utah. Call (801) 532-5297 today to discuss your case. 


This article was last updated on September 2, 2016.