Failing Breathalyzer Tests with Bac under 008 Percent

Breathalyzers are portable, breath-testing devices used to test blood alcohol content (BAC). Law enforcement officials who suspect a motorist of driving under the influence routinely administer these tests roadside. Infrared types of breathalyzers are commonly used nationwide despite enormous technical vulnerabilities therein.

For drivers with BAC of 0.08 percent and over, it is presumptive that they are legally intoxicated and will face DUI charges. Breathalyzer test results can be used as compelling evidence in DUI cases against the defendant when they appear in court – generally, test results proves a person’s guilt or innocence. But since the devices are vulnerable to flaws, those flaws could be detrimental to the driver.

You can also be deemed legally impaired with BAC under 0.08 percent according to DUI laws in some states. New York and California drivers can be arrested with a BAC of 0.07 or less. In Georgia, the Less-Safe Driver DUI laws can convict anyone with a 0.05 percent or less. Arrests are based on police officers discretion or observation of the following:

* Having alcohol or illegal drugs in the vehicle.

* Smelling of alcohol.

* Combativeness, anger, and suspicious behavior.

* Driving in the wrong direction.

* Reckless driving.

* Disobeying traffic signals.

* Having bloodshot and glassy eyes.

* Broken headlights and expired licenses.

* Attempting to lie or mislead the officer.

* Talking on the cell phone.

Other drawbacks of Breathalyzer tests:

Medical Conditions.

Asthmatics who use asthma inhalers can get false positive results. Inhalers contain ethyl alcohol (ethanol), which is ingested directly into to the lungs. Breathalyzers cannot distinguish between alcohol derived through an inhaler and alcohol intake.

Similarly, diabetics with low blood sugar have a substance in their bloodstream called acetone. Results often indicate evidence of alcohol in people’s system even when there was none. Similar drawbacks occur in people with acid reflux disease or regurgitation.


The metabolism of a driver who smokes can skew Breathalyzer results, unfortunately to the detriment of the driver. Results actually show a peak in BAC levels that suggests the driver was intoxicated when in fact cigarettes were the real culprits, not alcohol. Smokers’ lungs do have high concentrations of acetaldehyde, which shows up as high BAC in the bloodstream.


People fast for a variety of reasons: religious, spiritual, health, and dietary considerations among them. Moreover, anyone who has not eaten in a while (perhaps eighteen to twenty-four hours) will have elevated acetone levels. Higher BAC readings will be registered.

Industrial toxins.

Exposure to harmful fumes like paint, welding rods, varnishes, gasoline, and asbestos can significantly alter people’s body chemistry. Even when protective masks are worn, fumes are readily absorbed through the skin and identified by Breathalyzers as alcohol.

Acetone and acetaldehyde, for example, both non-alcoholic compounds, can also be misinterpreted as alcohol. The gray area is that Breathalyzer results can identify alcohol on the breath – but it does not discriminate between a compound naturally occurring in the bloodstream and an alcoholic beverage. Here, the limitations of the infrared Breathalyzer becomes problematic for the drivers who will ultimately faces a DUI offense.

Other limitations include human errors, equipment errors, officer training, and software failure. Breathalyzers are also not calibrated to take into account peoples height, weight, and gender.

Many factors can also thwart a successful roadside sobriety test. Foremost, a perfectly healthy, non-intoxicated driver may experience severe nervousness after being flagged by law enforcement. Nervousness may be intensified by on-lookers in the background or by cars driving along.

Age, fatigue, or physical disabilities may encourage a driver to under-perform. Lack of coordination may impact a driver’s ability to stand on one leg without wobbling or laboring, while counting out loud at the same time.

Appearing unsteady ultimately becomes irrefutable evidence against you if your actions are captured on videos installed on police car dashboards.

Inclement weather poses its own issues. Attempting to walk a straight line, heel-to-toe in wet or slick conditions could cause a driver to perform poorly. Problems can occur too on slanted and uneven road surfaces, gravel roads, and areas darkly lit.

People who fail Breathalyzers or sobriety test are likely to be arrested and charged even though results may have been compromised. You may face imprisonment, loss of demerit points, fines, and suspension or revocation of driver’s licenses.

Anyone charged with a DUI offense should seek help from a skilled criminal defense attorney. If the drunk driving suspect’s case was flawed due to Breathalyzer errors or roadside-test errors, an experienced lawyer familiar with these shortcomings can contest (challenge) the charges against the defendant.