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DUI breath Test

If you have been arrested for DUI and submitted to a chemical breath test, there are many factors you should be aware of that may affect your DUI arrest, including breath test problems, permissible refusal of a breath test and penalties for refusing a breath test, and possible defenses to the use of breath tests as evidence in DUI cases.

Your criminal defense attorney may be able to fight the breath test results obtained in your case and have them suppressed or excluded from evidence.

DUI Breath Testing in Pennsylvania

Attorney Michael J. Skinner represents individuals charged with DUI and breath test refusals in West Chester, Pennsylvania, as well as the surrounding areas in Delaware County. An experienced attorney can help you through each step of the process, and help you obtain the best possible outcome for your situation. Contact the Skinner Law Firm today for a consultation regarding your DUI and ignition interlock device at (610) 436-1410.


Problems with Pennsylvania Breath Test Devices

If you were arrested for DUI and blew over the legal limit of .08%, you are not prevented from fighting the charges. Breath test machines in Pennsylvania do not always render accurate and reliable results. The results from these breath test machines can be inaccurate and unreliable, and sometimes ultimately inadmissible in a criminal proceeding.

Any number of circumstances can lead to increased readings, including:

  • Irregularities in the calibration of the machine;
  • Irregularities in the maintenance of the machine;
  • Mistakes made by the breath test technician;
  • Alcohol in mouth from dentures or dental work;
  • Medical conditions, like fever, asthma, GERD or acid reflux;
  • An unusual diet or fasting prior to breath testing; and
  • Radio frequency interference from a cell phone or police radio.

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Penalties for DUI Breath Test Refusal

If a driver refuses to submit to chemical testing of their breath to determine Blood Alcohol Concentration (BAC), then Pennsylvania law imposes some of the most severe punishments according to Pennsylvania Statutes § 3804. These penalties can include:

An individual who refuses to submit to a breath test to determine blood alcohol concentration (BAC) faces the most severe penalties for DUI offenses.

  • A first offense DUI conviction involving a refusal to submit to a breath test is a misdemeanor and, if convicted, an individual faces the following mandatory sentence:
    • 72 hours to 6 months incarceration;
    • Fines ranging from $1,000 and $5,000;
    • 12 months driver’s license suspension;
    • Successful completion of an approved alcohol highway safety course; and
    • Successful completion of alcohol or drug treatment.
  • A second or subsequent DUI involving a refusal of a breath test is a misdemeanor of the first degree and, if convicted, an individual faces the following mandatory sentence:
    • 90 days to 5 years incarceration;
    • Fines ranging from $1,500 and $10,000;
    • 18 months driver’s license suspension;
    • Ignition interlock device installation for one year;
    • Successful completion of an approved alcohol highway safety course; and
    • Successful completion of alcohol or drug treatment.

An individual who refuses to submit to a breath test also faces severe license suspension consequences. In addition to the above license suspension, a refusal to submit to a breath test carries an additional one year (possibly 18 months) driver’s license suspension.


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Defenses to the Use of a Breath Test as DUI Evidence

Because breath test devices are not 100% accurate, there are a variety of defenses an attorney may be able to use, depending on the circumstances surrounding your arrest. In addition to attacking the reliability of the breath test results, the results of your breath test may have come about from violations of your constitutional rights and other statutory protections, including:

  • The officer illegally stopped or arrested you, or did not have reasonable suspicion to stop you;
  • The officer illegally asked you to perform a field sobriety test or take a chemical test;
  • After an investigation for DUI, the officer lacked probable cause to arrest you for DUI;
  • The breath test administrator was not a certified breath test operator;
  • The breath test device did not confirm to the rules and regulations of the Pennsylvania Department of Health.

Women may have additional defenses, such as:

  • Thin or petite women may have a skewed body partition ratio;
  • A woman’s body temperature can inflate the breath test reading; and
  • A woman’s lung capacity is different than a man’s, resulting in a lower ability to get a true BAC reading.

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Chester County DUI Breath Test Attorney

If you were arrested for driving under the influence and submitted to a chemical test of your breath in Chester County, Delaware County,  or any other surrounding county, contact the Skinner Law Firm today for a consultation about your alleged offense. Attorney Michael J. Skinner is experienced and knowledgeable about Pennsylvania’s DUI laws, including the administrator and collection of breath test results. He will make every effort to help you avoid harsh penalties. Call (610) 436-1410 about your breath test or breath test refusal.

Michael Skinner
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