Breath & Blood Tests

If you have been pulled over and arrested for suspicion of operating while intoxicated (OWI) in Wisconsin, you may have been instructed to submit to chemical tests – breath and blood tests in particular – while back at the station. You may have even been shown a number on a machine that reportedly displayed your blood alcohol concentration (BAC) level with a computer’s precision. If it was over the legal limit of 0.08 for the average motorist, are you out of luck?

At the Law Offices of Christopher J. Cherella, we are here to tell you that you still have a chance of defending your freedoms and your privilege to drive. With the help of our Milwaukee criminal defense lawyer, Mr. Cherella, there may be a way to construct a solid defensive case on your behalf, regardless of the evidence the prosecution may claim to have against you.

Why You Should Take a Breath or Blood Test

You may be aware that you have the right to refuse a field sobriety test after you have been pulled over for an OWI without facing immediately consequences. While this is true, it is important not to mix it up with refusing a chemical test, such as a breath, blood, or urine analysis. While you may refuse to take a chemical test, there will assuredly be instant and harsh administrative penalties due to the “implied consent” law that states you agree to chemical tests whenever you drive your car on a public road.

Even though it may go against most of what you heard about providing evidence against yourself and what not to do when arrested, you will want to take chemical tests in nearly all scenarios. The administrative penalties used if you refuse cannot be challenged by a lawyer because they are not criminal punishments stemming from the criminal justice system.

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 attorney.

How We Can Challenge Your Breath & Blood Test Result

There is no such thing as perfection, not even within a machine maintained and owned by the police force. The chemical analysis machine used in your breath and blood test can display inaccurate results if it is not properly calibrated.

In blood tests, law enforcement agents must be extremely careful when conducting analysis. Blood samples are fragile and sensitive to environmental changes. For example, if a blood sample is left out of cold storage for too long, or is frozen for too long, it can become contaminated. A contaminated blood sample is likely to be usable in a chemical test and report higher BAC levels as the blood cells deteriorate but the ethanol remains the same.

Get 20+ Years of Legal Experience

The last thing the Milwaukee Police Department is going to expect is for you to know your legal rights after being arrested for an OWI violation. When you come prepared to defend yourself, backed by the power and knowledge of our Milwaukee OWI attorney, you can greatly increase your chances at securing a beneficial outcome to your case. Once again, there is a 10 day limitation to take action after an OWI arrest.