9.27.2021

5 Ways a Lawyer Can Challenge a Blood/Breath Test Result

Written by: The Law Offices of Garrett T. Ogata

Legal Strategies for Fighting a Breath or Blood Test in a DUI Case

Many people wrongly assume that they are automatically guilty of driving under the influence (DUI) if a chemical test shows that their blood alcohol level was over 0.08%. A highly qualified lawyer can challenge a blood or breath result in court and at an administrative hearing through the Department of Motor Vehicles.

At The Law Offices of Garrett. Ogata, we represent individuals who have been arrested for DUI in Las Vegas and throughout Nevada. Attorney Ogata has successfully handled thousands of drunk driving cases, protecting his clients’ reputations and freedom. If you have been arrested for a DUI, contact our office at (702) 553-1320 today for a free consultation. 

1. Attacking the Reliability of the Blood Test

Nevada’s implied consent law requires that a person who is arrested on suspicion of driving under the influence submit to an evidentiary test. Generally, a person may choose either a blood or breath test, but refusing to submit to a chemical test can result in additional penalties through the court if convicted. 

Most people are unsure about whether to choose a blood or breath test. Both evidentiary tests can be challenged in court, but only a blood sample is preserved. An attorney may be able to have an independent lab retest the sample, referred to as a blood split.

An attorney may challenge a blood test by:

  • Attacking the reliability of the test;
  • Using evidence to show that the blood sample wasn’t properly handled or preserved;
  • Showing fermentation occurred; 
  • Proving that the blood sample was contaminated; or
  • Questioning the chain of custody.

A person who is arrested for a Nevada DUI and refuses to submit to an evidentiary test may be required to do a forced blood draw. Additionally, the person could face a license revocation of 1 to 3 years if convicted.  

2. Breath Device Not Properly Calibrated

While a blood test preserves a sample, a breath test has more ways it can be challenged in court. For instance, a breathalyzer must be properly inspected, maintained, and calibrated. An attorney can subpoena the calibration and maintenance records on the device that was used after your arrest. 

Calibration requirements for evidential breath-testing devices in Nevada: 

  • A certified forensic analyst of alcohol must calibrate the device;
  • At least once within the 90 days immediately prior to the date it was used to test a person’s breath; and
  • Must include verification of the response and accuracy of the device.

At trial, the calibration and maintenance records can be entered into evidence and used to prove that the device was not in proper working order. Even before the trial, documents that show an improperly calibrated device can be used in negotiations to secure a dismissal.

3. Breath Device Was Not Properly Maintained

Law enforcement must not only keep records of the date and time of the calibrations, the analyst who performed them, and the response and accuracy of the device but also any maintenance or repairs that are done. 

Pursuant to NAC 484C.140, if maintenance is done on a breathalyzer, the following must be recorded:

  • The date and time of the maintenance or repair;
  • The name of the person performing the maintenance; and
  • The nature and extent of the maintenance or repair.

Without the help of an attorney, you may never know whether the breathalyzer was maintained and calibrated in accordance with Nevada law.

4. Lack of Training/Operator Error

Breathalyzer operators are required to undergo training in order to conduct the breath test. An officer who is not trained or certified may not correctly administer the test. For instance, an untrained operator may not know to observe a person for 15 minutes prior to administering it, rendering the results unreliable.

An attorney can subpoena the training and certification records of the officer or technician who administered the breath test. This information may not be available without a formal subpoena.

5. Failure to Keep Records

By statute, law enforcement agencies are required to keep adequate records on breathalyzer devices and their operators. These records can be subpoenaed for a criminal hearing or administrative hearing through the Department of Motor Vehicles. 

Records may show that a breathalyzer was not properly calibrated or inadequately maintained, which means that the results can be challenged in court. A skilled attorney knows what to look for in breathalyzer records and can use this information to obtain a favorable outcome in your case.

Arrested for a DUI? Contact Our Office for a Free Consultation!

If you have been arrested for a Las Vegas DUI, contact the Law Offices of Garrett T. Ogata for a free consultation. There are many ways to challenge the validity of a blood or breath test. In addition to the methods above, we will look at whether a medical condition such as GERD, acid reflux, or diabetes may have impacted the results. 

Our knowledgeable legal team is well-versed in arguing a rising blood alcohol defense and questioning whether the presence of mouth alcohol resulted in a high BAC. However, you must act fast as you only have a limited amount of time to fight the charges and automatic suspension of your license. Call our office today at (702) 553-1320 to get started.

Share This Story

Interested in this topic? Your friends might be too! Consider sharing this story to your social media channels by clicking on one of the icons below.
uploadmagnifiercrossmenu linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram