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How Can I Get a Breath Test Thrown Out of Evidence?

Sep 2nd, 2016 Breath Testing

If you were given a breath test after being arrested for drunk driving in Michigan, then it is important to have an attorney verify that the test was given properly.  This means verifying that all requirements were followed and adhered to.  A failure to do so can result in the test being thrown out of evidence.

An example of such a requirement is the 15 minute observation period.  If the police do not observe you continuously for 15 minutes prior to asking you to blow into the machine, then the test might be deemed invalid.

The police must also check your mouth before asking you to blow into the machine.  If they fail to do so and it can be show that something was in your mouth when you blew into the machine, then the test can be deemed invalid.

An example of a case where this happened is the case of State v. Levanger, 378 Mont. 397 (2015).  Here the defendant and placed him in handcuffs in the backseat of the patrol vehicle. At 8:40 a.m., the defendant was taken to jail for a breath test using.  About five minutes into the drive the officer stopped the vehicle after realizing that he had not checked defendant’s mouth for substances. It was discovered that the defendant had chewing tobacco in his mouth so he was asked to spit it out. His mouth was never physically.

At 8:59 a.m., the defendant arrived at the jail, and his breath sample was taken at 9:11 a.m. yielding a result of 0.126. The trial court concluded that the breath test results were admissible. Including transportation time, twenty minutes had passed from the removal of the chewing tobacco and the administering of the test, and there was no observation of any symptoms signaling that behavior either during the drive or during the time at the jail.  However, had the court found otherwise, the test would have been suppressed.

If you were arrested for drunk driving in Michigan and took a breath test, have one of the attorneys at the Barone Defense Firm investigate whether or not the test was administered properly.  If it was not, then your case might even be dismissed.