If you are arrested for a DWI/DUI, many factors can cause a false positive on a breath test, including individual health conditions, medication, and poor device maintenance on behalf of the police department. You should not have to face the consequences of a DWI/DUI when you were not even driving drunk in the first place. Fortunately, you have a chance to defend yourself in court if this is the case.
In This Post
While you should always speak with an experienced DWI/DUI lawyer in New Mexico for legal advice, I will help you understand what a breath test is and what can cause them to trigger a false positive.
What Is a Breath Test?
A breath test, sometimes called a Breathalyzer test, is a test administered by law enforcement to measure your blood alcohol content (BAC). It is performed by blowing a deep and sustained breath into the device until it registers the results. In New Mexico, you fail the breath test if your BAC is .08 percent or higher under NMSA § 66-8-102 (1978).
There are two (2) types of breath tests:
- Preliminary alcohol screening (PAS) tests: PAS tests, also called portable breath tests (PBTs), are the traditional handheld device used by police during a traffic stop if you fail your field sobriety test. However, PAS tests are typically not accurate enough for prosecutors to use as evidence to prove your BAC during criminal proceedings.
- Evidential breath test (EBT) devices: EBT devices are imperfect but are more accurate than PAS tests. Courts generally accept their results because of their reliability. Prosecutors usually use EBT results to prove your BAC in court.
As you can see, even the devices law enforcement officers use may be problematic and offer varying results when screening for a potential DWI/DUI. Let’s consider other possible reasons that may lead to a false positive on a DWI/DUI breath test.
Potential Reasons for a False Positive on a DWI/DUI Breath Test
Besides alcohol, other factors can play a role in a positive breath test result, including a false positive. Individuals, who blow a false positive during a traffic stop, face embarrassment of arrest, impound fees, and legal costs.
Here are five (5) reasons why a breath test may falsely detect alcohol:
- Use of breath mints and mouthwash: Both products may contain alcohol and often do. If you have a high concentration of mouth alcohol when taking the breath test, it can result in a false positive and subsequent arrest. In addition to alcohol, breath mints and mouthwash may also contain menthol or sorbitol, which can register a false positive.
- Poorly managed diabetes: If you have diabetes, your medical condition can cause the breath test to register your BAC as over the legal limit. Since your body produces excess acetone, a breathalyzer may not be able to distinguish this chemical from alcohol.
- Poorly maintained Breathalyzers: The arresting police department must calibrate and maintain their testing equipment. Manufacturing defects, poor calibration, or general neglect can all result in a false positive for you. Without routine maintenance, the police may arrest people illegally and create a massive injustice to drivers.
- Over-the-counter medicine: Cough medicine, like Robitussin, can trigger you to blow a false positive. Make sure that you do not drive on other-the-counter medications that cause drowsiness and unsafe driving.
- Certain Topical ointments: Even topical treatments, like Anbesol, can make it challenging to path a breath test. By applying any medication to your mouth containing alcohol, you may unknowingly cause a false positive and your arrest. Keep in mind that breath tests are not always the best measure of whether you are drunk or not.
The most practical way to avoid a false breath test is to avoid alcohol products altogether. However, you have the right to drive, provided that you do not exceed the legal limit and meet the legal requirements to lawfully operate a motor vehicle.
What to Do If You Were Arrested for a DWI/DUI But Were Not Drunk
Regardless of what caused you to fail the breath test, a false positive costs you time, money, and pride. Unfortunately, you have to know this information in advance, and if it happens, it is already too late. For those who are reading this post after an arrest, please know that your DWI/DUI charges are defensible if you were not driving drunk. Get help from a New Mexico DWI/DUI attorney as soon as possible.
Related Article: Can I Turn Around Before a DUI Checkpoint in New Mexico?
Call Me for a Free Case Strategy Session
If you or someone you love stands accused of false positive on a breath test in New Mexico, contact me at Grano Law Offices, P.C. now. With years of experience and training, I will fight for your rights and protection in court. Call (505) 426-8711 or message me online to request a Free Case Strategy Session.
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