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Breathalyzer defenses and penalties for refusal

On Behalf of | Dec 23, 2021 | Criminal Defense

Many officers in Ridgeland, Mississippi, use a Breathalyzer to measure the blood alcohol content of a suspected drunk driver. The legal BAC limit in Mississippi for standard drivers is 0.08 and 0.04 for commercial drivers. However, Breathalyzers do not always give the correct results, and the driver can challenge them.

Defenses to a Breathalyzer

Calibration is required periodically, which checks the sensors of the device to ensure that it gives accurate results. If the device isn’t calibrated, the sensors may not read the breath sample accurately, causing a false positive. The officer must also be trained to use the device correctly, or the results could be unreliable.

The officer needs reasonable suspicion to stop a driver and check them for DUI, such as erratic driving. The officer also needs probable cause to make an arrest, which means they need proof of intoxication. If one or both of these elements are missing, a criminal defense strategy could use this as a valid defense.

In addition, some health conditions, such as diabetes, may skew the results of the test because they produce acetones that the device misinterprets as alcohol. Certain foods and products may contain alcohol and give a false positive, such as mouthwash and baked goods.

Penalties for refusing a Breathalyzer

Implied consent laws in all states mean that the driver has made an agreement to chemical tests by having a license. The officer should inform the driver of the consequences of refusing a Breathalyzer and can seize the license if they refuse.

A first refusal is an automatic 90-day license suspension, and it increases to one year with a prior conviction. For a second refusal within five years, penalties may include a one-year license suspension and no hardship license eligibility. However, a driver may refuse the initial portable Breathalyzer test without penalty before the arrest, depending on the situation.

Drivers should know their rights when it comes to Breathalyzers. In some cases, they may be able to file an appeal within 10 days of license suspension.

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