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DWI/DUI Defense

The breath test said I had a blood alcohol content over the legal limit. Do I have a defense?


I just got arrested for DWI. What should I do?
How does a DWI investigation work?
The breath test said I had a blood alcohol content over the legal limit. Do I have a defense?
What is a partition ratio and how does it affect a breath test?
What do I need to worry about concerning my driver's license?
I cannot afford to have my license suspended or revoked. Is there anything I can do?
Beware the cheap lawyer!

You very well may have a defense. The breath testing machines are required to be tested at least once every thirty-five days by an officer with a proper permit from the Missouri Department of Health and Senior Services. Likewise, the officer conducting the test must be properly certified and must take certain steps to ensure the validity of the breath test. If the breath testing machine is not properly tested or if the test is not properly administered, then the court should not admit the results into evidence.

You may still have a defense even if the testing results are admissible and you blew over the legal limit. The breath test you took measures your blood alcohol content as of the time you took the test, typically around an hour or so after you were pulled over. But what matters is your blood alcohol content at the time you were driving, not at the time of the test. When a person drinks alcohol, it takes some time to digest the alcohol. A person’s blood alcohol content will rise for a period of time (even up to a couple hours under certain circumstances) after the person drinks.

For example, if you were to have a drink right before you left the restaurant and then drove ten minutes to go home, you may not feel the effects of the alcohol until you were already at home. Your blood alcohol content might be within the legal limits and only rise above 0.08 g/dL after you arrived home. If you were pulled over on the way, then you were legally driving when you were pulled over. As the officer is conducting his investigation, your blood alcohol content is on the rise. By the time you take the breath test, you have an excessive blood alcohol content even though you were legal when you were driving.

Another potential defense arises from the fact that the breath test assumes that everyone has the same ratio of alcohol in the breath to alcohol in the blood, when in fact everyone is different. You can read more about the partition ratio defense here.

There are a number of other factors which could affect the validity of a breath test. At Baker Legal Services, we can discuss any other potential reasons to question the accuracy of a breath test and discuss any other defenses you may have.