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Breath Test

The most common way for law enforcement to determine if you’re driving under the influence (DUI) is through breath analysis. Officers will either use a portable breathalyzer or a standard breathalyzer or intoxilyzer at the station to determine your blood-alcohol concentration (BAC). If you blow at or above .08 BAC, then you will be charged with DUI.

If you’ve been charged with DUI because of a breath test, it’s important you secure legal representation. A breathalyzer test can be skewed by external factors such as outdated equipment or improper procedures. In addition, the science behind breath analysis is still in development, meaning the test itself isn’t entirely accurate.

DUI Attorney Explains Breathalyzer Tests in Colorado Springs, CO

Breath tests have a tendency to give false or skewed results due to environmental factors. You could be charged with DUI because of a faulty test. That is why it’s crucial you get in contact with an experienced criminal defense attorney for your case.

Call the attorneys at Law Offices of Clifton Black, P.C. for an excellent legal defense. Our lawyers have handled numerous DUI cases in the Colorado Springs area. Contact us by phone at (719) 328-1616 and schedule a free consultation now. Law Offices of Clifton Black, P.C. accepts clients throughout El Paso County and surrounding counties including Denver County and Arapahoe County.


Overview of Breath Tests in Colorado


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How Does a Breathalyzer Measure Your BAC?

Police officers use portable breathalyzers (PBT), breathalyzers and intoxilyzers to determine your BAC. All three measure the number of grams of alcohol in your breath. However, each device calibrates BAC differently.

A breathalyzer is made up of tow glass vials containing a chemical reaction mixture and a system of photocells connected to a meter. If you blow into the device and are above the limit, the meter will change from a reddish-orange mixture to a green. Law enforcement will then compare the tested reacted mixture with an unreacted mixture to see if you’re driving drunk. A portable breath test (PBT) works in a similar fashion but tends to be less accurate.

Intoxilyzers rely on infrared (IR) spectroscopy to determine BAC, which identifies how molecules absorb IR light. You can identify ethanol in a breath sample by reading how the molecule’s wavelength bonds react to IR light. The device uses an IR beam through a chamber which focuses on a spinning filter wheel. The IR beam passes through the filter wheel and is converted into an electrical pulse, which is then relayed to a microprocessor. The microprocessor will determine a BAC based on how the molecules reacted to the light.


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Is a Breathalyzer Test Accurate?

Officers rely on breathalyzers to determine the BAC levels of drunk drivers. However, breathalyzers and intoxilyzers have both been reported to yield inaccurate results. Outside factors such as unmaintained equipment could lead to a false BAC reading. Some people have even reported something as simple as a diet affecting their breath test.

Listed below are some common problems that occur in a breath test.

  • The instrument hasn’t been calibrated;
  • You have residual alcohol in your mouth;
  • You’re on a diet;
  • Your metabolism is slow;
  • Electromagnetic interference from other devices such as cellphone towers;
  • Officer read the results incorrectly;
  • You took cold medicine or a prescription drug before driving;
  • You were around lacquer, paint, cleaning solvents or other alcohols;
  • You belched, vomited or hiccupped before the test;
  • The temperature of your breath;
  • You’re a diabetic;
  • You have acid reflux; or
  • The officer didn’t follow the proper protocol

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Should I Refuse a Breathalyzer Test in Colorado?

Colorado has a set of laws referred to express consent that state you must comply with chemical testing if an officer has probable cause you’re driving intoxicated.

When the driver that is accused of drinking and driving chooses to submit to a breath test, the officer will transport the suspect to a police station, sub-station or other location where a breathalyzer is located.  In Colorado these breath testing machines are located at police stations, military bases, colleges, and even mobile police stations (motor home).  These breath testing machines should not be confused with a portable breath test (PBT) that is carried by cops.  The breathalyzer is a machine that sits on a desk or table.

The person accused of drinking and driving is instructed to blow into the machine until a breath sample is collected.  The breathalyzer provides a result in a few moments.  The suspected DUI driver provides two breath samples, the lower result is reported in the criminal charges for DUI or DWAI.  If the result is .05 – .079 BAC, the person is charged with driving while ability impaired ( DWAI ).  DWAI is a lessor offense than Driving Under the Influence ( DUI ).   If the breath test provides a result of .08 BAC or higher (.02 or higher for a minor), the driver is charged with Driving Under the Influence ( DUI ), also known as drunk driving.

When the person’s BAC shows a result of .08 or higher the officer must provide the driver with notice of the right to a DMV administrative hearing.  When the results of a breath test (not the portable breath test carried by police) the officer will physically take the license of the person accused of drinking and driving, charge the driver with a criminal summons for DUI, DUI per se, and issue the driver a temporary license.

However, you can still choose to refuse a breath analysis test. If you do, just know there will be consequences.

Refusing DUI breath testing will result in your license being suspended. If you’re over 21 years old, then your license will be suspended for:

  • 12 months for the first refusal;
  • 24 months for the second refusal; and
  • 36 months for the third refusal

Know that you can fight your suspension. You can file a request for a hearing at the Colorado Department of Motor Vehicles (DMV) to contest your suspended license. To do this, you must act quickly. You only have seven days to file a request for a hearing at the Colorado DMV. If you miss your chance, you will be barred from requesting a hearing.

It’s important to note you’ll be required to file an SR-22 to have your license reinstated no matter the result of the hearing or if you’re determined to not be guilty of DUI. Additionally, Colorado requires you to install an ignition interlock device on your car for at least two years once it’s reinstated.


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Additional Resources

Colorado DUI Laws – Visit the official website of Colorado’s Statutes to learn more about their laws for driving while intoxicated. Access the statutes to learn more about the penalties of driving drunk and what happens if you’re a minor or a commercial driver.

Answers for Suspension Hearings – Visit the official website of the Colorado Department of Revenue (CDOR) to learn more about driver license hearings. Access the site to find more information about how to request a hearing, how to prepare and if you need an attorney.


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DUI Lawyer for Breath Tests in El Paso County, CO

If you or someone you know has been charged with DUI because of a breath test, it’s important they gain legal counsel. If you refused, then you could face a license suspension and required installation of an IID. If you submitted to testing, then you might face DUI charges. No matter the circumstances, it’s important you have an experienced defense attorney on your side.

Call Law Offices of Clifton Black, P.C. to speak to a qualified lawyer today. We have years of experience with DUI cases, especially charges involving breath tests. Our team can contest the evidence with our years of knowledge. Call (719) 328-1616 today to set up a consultation. Law Offices of Clifton Black, P.C. accepts clients throughout the greater Colorado Springs area including Fountain, Manitou Springs and Peyton.


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Law Offices of Clifton Black, P.C.