Two Possible Defenses For Failing To Properly Take A Breathalyzer Test

One of the most common blood alcohol tests administered is the breathalyzer. State laws typically require you to cooperate with the officer and take the test. Unfortunately, if you're unable to properly use the breathalyzer (e.g. not able to blow hard enough), the officer may cite you as being uncooperative or even say you refused to take the test, which can result in serious consequences such as revocation of your driving privileges. Here are two possible defenses you can use for performing poorly on the breathalyzer test that may help you get some of the DUI charges against you dismissed.

Medical Condition

Many breathalyzers require tested individuals to take a deep breath (to get air from deep in the lungs) and blow into the instrument for a certain period of time. For instance, Alcotest requires users to blow a minimum of 1.5 liters of air into the machine for at least 4.5 seconds to obtain a reading.

The trouble is that not everyone has the lung capacity to produce that much air or blow into a breathalyzer for that long. There are a variety of medical conditions that negatively impact lung function, which may result in poor performance. For example, a person with severe COPD usually only has 30 to 49 percent lung capacity, which may make it difficult for the individual to take a deep enough breath, blow for the requisite period of time, or both.

Other medical conditions that can affect lung function include asthma, lung cancer, emphysema, cystic fibrosis, and even allergies if they're severe enough. To prove you couldn't properly perform the breathalyzer test due to a lung function issue, submit your medical records to the court showing your diagnosis.

Fatigue or Emotional Distress

Another thing can make it difficult to give usable breath samples is your physical and emotional state at the time. Being stopped for a DUI can be an upsetting experience and dealing with a rude or surly officer can make things worse. Emotions such as anger, anxiety, or fear can cause changes in a person's breathing pattern that may make it hard to do the test properly.

Sometimes people get worn out by the testing process and just can't give any more samples. This can happen if the officer is requesting the person blow into the breathalyzer over and over again because of issues with the machine or failure to properly administer the test. Alcohol is a depressant that is well known for making people tired, so you may become fatigued quicker if you have had a few drinks.

Whether this defense will be accepted may depend on the judge in your case. Some judges will be understanding about the conditions of the testing environment and accept this explanation and some may not. Your attorney can help you determine the best way to present this defense to increase your odds of getting a charge of failure to cooperate or take a BAC test dropped.

For more information about this issue or help with a DUI charge, contact a DUI attorney. Visit a site like to find a suitable attorney.

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