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Loudoun County Attorneys > Blog > DUI > If I Took a Breathalyzer Test, Am I Automatically Guilty?

If I Took a Breathalyzer Test, Am I Automatically Guilty?


Of course not, although it might seem that way. The conviction rate in Breathalyzer cases is much higher than the conviction rate in non-test cases. Virginia, like most other states, has a per se DUI law. If the defendant’s BAC level was above the legal limit, the defendant was intoxicated as a matter of law. However, the Breathalyzer result is often inaccurate. Additionally, some non-intoxication defenses often apply. More on these things below.

A Virginia DUI defense lawyer leverages these defenses at trial, and during pretrial settlement negotiations, to successfully resolve DUI cases. These successful resolutions often include a reduced sentence or reduced charges. Additionally, lawyers proactively communicate with clients throughout the process, giving them peace of mind during a very uncertain time.

Breathalyzer Flaws

Although it has many more bells and whistles, the modern Breathalyzer is basically an updated version of the 1920s Drunk-o-Meter. Both gadgets use breach alcohol levels to estimate blood alcohol levels. As a result, the Breathalyzer inherited some of the Drunk-o-Meter’s many flaws, which include:

  • Mouth Alcohol: Alcohol causes most people to repeatedly belch, burp, or vomit. Every time they do so, ethanol particles in the stomach flood into the mouth and skew the BAC estimate. Frequently, defendants burp immediately prior to taking the test, and instead of waiting, police officers administer the test straightaway instead of waiting for the required fifteen minutes.
  • Unabsorbed Alcohol: The digestive process for alcohol is much slower than the digestive process for other foods and beverages. Alcohol moves from the stomach to the liver to the blood, instead of straight from the stomach to the blood. So, if the defendant recently consumed alcohol, this alcohol isn’t in the bloodstream.
  • Temperature Variations: Environmental temperature changes affect Breathalyzers. Outside temperatures often change quickly and radically in Virginia, especially at certain times of the year. Individual temperature also affects test results. People with a slight fever, usually because of a cold or flu, almost always “fail” Breathalyzer tests, even if they’ve had little to drink.

To highlight these flaws with jurors, a Leesburg criminal defense lawyer often partners with a degreed chemist. Such an individual carries much more weight with jurors than a poorly trained police Breathalyzer technician.

These flaws loom very large in a .08, .09, or other borderline BAC case. A lawyer doesn’t have to invalidate the test result. An attorney must only create a reasonable doubt as to its accuracy.

Non-Intoxication Defenses

In addition to intoxication, the state must prove the defendant was driving the vehicle in a public place in Loudoun County.

In non-collision cases, the arresting officer usually sees the defendant behind the wheel. But in collision cases, a civilian witness must often “wheel” the defendant. Such witnesses are often not very credible.

A large apartment complex or other parking lot isn’t a public place, even if the streets have names. Furthermore, if the offense occurred across the county line, a Loudoun County judge must dismiss the matter due to a lack of jurisdiction.

Reach Out to a Hard-Hitting Loudoun County Lawyer

There’s a big difference between an arrest and a conviction in criminal law. For a free consultation with an experienced criminal defense attorney in Leesburg, contact Simms Showers, LLP, Attorneys at Law. Virtual, after-hours, and home visits are available.



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