San Diego DUI Law Center

Breath Test Defenses

San Diego DUI Breath Test Defenses

  1. Failure of San Diego California DUI police to do observation of breath test subject for entire 15 minutes before first breath sample. San Diego Drunk Driving police allow cessation or interruption in continuity of fifteen minute observation of person tested prior to initial blow sample: (a) San Diego area police officer often improperly attempts to include transportation time as part of required 15 minute observation period. San Diego area breath test given within a few minutes of arrival at breath test location;  (b) Officer required by law to remain in presence of subject and be able to use all of his/her senses (sight, sound and smell) to properly and logically conduct a true observation during the 15 minutes before test;  (c) Observation means a realistic ability to perceive by actually paying attention to subject during the 15 continuous minute period;  (d) San Diego DUI officer who purports to observe while driving fails to tilt mirror in order to be able to see subject in backseat or who fails to stay with subject;  (e) San Diego patrol car has dispatch radio on, emitting noises and interfering with officer’s ability to hear what subject is doing while in the moving vehicle;  (f) San Diego DUI officer goes to the trunk upon arrival at breath test location often to put gun away, or walks around before removing subject from police car, or leaves subject alone at anytime during the 15 minutes before blowing – e.g. use of restroom or telephone, or placed in holding cell or area outside presence of cop.
  2. At some point during the important 15 minutes before the San Diego DUI breath test, you have a slight burp, belch or regurgitation of gas; or eat, drink, or smoke.
  3. Vomiting, burping, belching or regurgitation of gas within 15 minutes of test, and with no rinsing of mouth, or inadequate deprivation period before retest.
  4. You may not be a proper subject for breath testing. You have a physical problem or health limitation:a. gastric reflux, hiatal hernia or intestinal problem(e.g. Gastro Esophageal Reflux Disease, Irritated Bowel Syndrome, or Acid Reflux Syndrome) diagnosed and treated before date of arrest; dental condition (e.g. gum disease/gingivitis/pockets around roots, dentures or bridgework which may trap mouth alcohol and contaminate a breath machine sample); or respiratory problem (e.g. asthma, bronchitis, emphysema or chronic obstructive pulmonary disease).
  5. Your behavior or actions do not make sense when compared to San Diego DUI breath test results (perhaps also proven by independent witnesses).
  6. San Diego DUI breath test room or circuitry has a problem (e.g. Radio Frequency Interference from a cell phone, officer’s radio, copy machine or other equipment with surge capabilities) which may cause machine to give artificially high reading; smoking in or near machine; shared power supply with heater or other appliance – must be dedicated “clean” electrical source; or recently painted walls or trim).
  7. You have had recent environmental exposure to volatile fumes (lacquer, gasoline, paint, dry cleaning fluids or even 409) which have cumulative reading, causing chemical interference/falsely elevated result.
  8. Air bag defenses – “the Tyndall effect” – diffusion of light; propellant exposure; cut lips; lung and airway irritation & fluid build-up from caustic gas propellant.
  9. (If available – unlikely in San Diego:) Video tape refutes the high reading, supports sobriety.
  10. High test result, yet you never urinate for 3 to 4 hours or more – physiological impossibility.
  11. No intent alcohol (e.g. from Nyquil, Vicks Formula 44, lip balms, toothache drops).
  12. Food/mint/candy in mouth containing alcohol (e.g. Breath Drops with SD alcohol).
  13. Interfering or contaminating substance from something in mouth (e.g. Skoal snuff – wintergreen; Altoids curiously strong mints).
  14. Not-in-agreement tests, without follow-up tests to correct [both results must be within 0.02% of each other].
  15. San Diego DUI Officer refuses to permit your request for a second, independent test. Denial of blood test – the more reliable target with the more accurate method of analysis.
  16. San Diego DUI Officer not trained or marginally trained in accordance with the standards of Title 17 of the California Code of Regulations (e.g. not trained in “theory of operation” of machine).
  17. San Diego Drunk Driving Officer fails to follow manual or training protocol.
  18. Inadequate inspections by machine inspectors (e.g. no linearity proven).
  19. San Diego county DUI police report supports sobriety, or lack of investigation of alternative causes.
  20. Blood alcohol level is “rising” – level at time of driving lower than time of testing.
  21. Breath temperature elevated (e.g. caused by fever, hot tub, sauna, detention in hot sun or back of patrol car in summer, dancing, menstrual cycle, etc.)
  22. Breath to blood ratio (averaged at 2100:1) not proven to be your ratio; show how minor error gets multiplied 2100 times; 0.12 = 17/10,000,000th of an ounce. Show you have abnormally low blood/breath conversion ratio through testing and toxicologist.
  23. Inherent sampling variability or margin of error (e.g., 0.088 reading – state acknowledges +/- 0.01% precision problem).
  24. Blowing pattern irregularity (e.g. blubbering and crying causing artificially high water vapor problem).
  25. Strict high protein diet and then introduce carbohydrates, thereby triggering auto-generated alcohol production when ketones are converted to isopropyl alcohol (or the “auto-brewery” syndrome).
  26. Diabetes, or are borderline diabetic or are hypoglycemic and consume alcohol in any amount, causing conversion of high acetone levels into isopropyl alcohol.
  27. San Diego DUI breath machine operator gets first BAC results, which will not support a .08% per se case, then waits a few more minutes and retests, obtaining a reading above the per se limit.
  28. San Diego Drunk Driving Officer gives chemical test admonition, but then goes too far by threatening dire warnings for which there is no factual basis or misstates consequences regarding possible license suspension.
  29. San Diego DUI Prosecutor fails to prove that results were obtained within the 3 hour statutorily imposed time (3 hours after driving ended) in order to invoke rebuttable presumption that your BAC was at or over the limit at time of driving.
  30. Alcohol was consumed during driving, after driving ended or before San Diego DUI police arrived.
  31. San Diego DUI Officer gets fired, indicted, retires, moves away, or dies.
  32. San Diego Drunk Driving Officer commits crime (e.g., obstruction of justice or perjury) in an effort to conceal evidence; state cannot proceed, or more often makes an illegal, warrantless stop or arrests you without probable cause.