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I Failed a Breath Test - Can I Still Fight My OWI?

One of the most commonly held and misguided notions regarding operating while intoxicated (OWI) cases is that a defendant is essentially guilty if they fail a breath test. This is not true! While the results of in-station breath tests and roadside breathalyzer tests are often key pieces of evidence, they are not the “smoking gun” that many have made them out to be. In fact, there are numerous ways in which defendants can question the results of a breathalyzer and still prevail in court. While the applicability of these strategies will largely depend on the details of your situation, generally speaking, breathalyzer evidence can be “beaten” in the following ways:

  1. Unreliable results: The criminal justice system allows jurors to consider the reliability of evidence, including breath test results. Certain brands of testing machines, especially handheld models, are notorious for producing false positive results and are not considered to be scientifically accurate.
  2. Improper calibration: Breath testing machines are electronic devices which must be properly calibrated in order to yield reliable readings. Unless the prosecution can prove that the machine used was properly calibrated, the judge may deem the test results inadmissible.
  3. Improper training: Just like how many people have successfully beaten speeding tickets by challenging the officer’s proper use of a radar gun, the same strategy may be used for breath tests. If the defense can show that the arresting officer did not have the proper training to operate the breathalyzer, the results may be declared unreliable.
  4. Illegal testing: If the police officer did not have a valid reason to pull you over or if they did not have probable cause to believe you were intoxicated, the results may be thrown out of court. Similarly, you may not be coerced into consenting to a test against your will.
  5. Failure to testify: The Sixth Amendment grants you the right to face your accuser and have them cross examined in court. Your attorney may be able to allege that your breathalyzer test results are a violation of your constitutional rights if the testing officer fails to appear in court.

While these are just a few of the many strategies used to fight a OWI charge in the face of a failed breath test, the options available to your defense are only limited by the creativity and skill of your criminal defense attorney. If you are facing OWI charges, our Milwaukee OWI lawyer at the Law Offices of Christopher J. Cherella can examine the facts of your case and craft a strategy that maximizes your chances of achieving a favorable outcome for your case. To find out more about what our decades of experience can do for you, call our office today at (414) 882-8382.

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