Most people arrested and charged with driving under the influence (DUI) are unfamiliar with the criminal justice system. Instead of being a career criminal, the average DUI defendant is an otherwise law-abiding citizen who had a temporary lapse in judgment. Consequently, most DUI defendants who took and failed the chemical breath test are convinced they will be convicted. A Nebraska DUI defense attorney from Petersen Law Office explains how failing the breath test does not automatically mean you will be convicted of DUI.
Don’t Let the Other Side Intimidate You
Most DUI investigations end with the officer asking the motorist to submit to a breath test once they have arrived at the station/jail. Nebraska, like most states, has an implied consent law that effectively says you agree to submit to a chemical test to check for the presence of alcohol and/or drugs in your system if you choose to drive on a public roadway. You can refuse the test; however, there are separate consequences imposed for doing so which is why most motorists agree to the test. By the time you take the breath test the officer that stopped you has already formed the requisite probable cause to arrest you and charge you with driving under the influence. The results of the breath test, however, make the prosecutor’s job of convicting you of those charges much easier because of how the state’s DUI statute reads, as follows:
(1) It shall be unlawful for any person to operate or be in the actual physical control of any motor vehicle:
(a) While under the influence of alcoholic liquor or of any drug;
(b) When such person has a concentration of eight-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his or her blood; or
(c) When such person has a concentration of eight-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his or her breath.
How Can You Defend against a Breath Test Failure?
Given that the statute clearly makes it illegal to operate a motor vehicle with a BAC of 0.08 or above, it is often easy for the arresting officer, the prosecuting attorney, or anyone else on the “other side” to convince you that a defense is hopeless. The truth, however, is that it is possible to avoid a DUI conviction even if you failed the breath test. Two common ways to attack the test results are to:
- Challenge the Test Results. During the stop that led to your arrest, the officer likely asked you to submit to a chemical test to check for the presence of alcohol in your system. Contrary to popular belief, breath test machines are not 100 percent accurate nor are they infallible. Test results could be inaccurate for many reasons, including:
- Lack of training on the part of the officer that conducted the test
- Failing to properly calibrate and/or maintain the machine
- Not waiting for the required observation period
- Medical conditions you might have
- Use the “Rising Alcohol Level (RAL)” Defense. If you consumed alcohol just prior to operating your vehicle, the alcohol in your system may still have been rising, causing you to test with a higher blood alcohol concentration (BAC) than you actually had when you were operating your vehicle. This is known as the “Rising Alcohol Level (RAL)” defense. The RAL defense is predicated on the manner in which alcohol is absorbed in your bloodstream. When you consume alcohol, it takes time for that alcohol to make its way through your body and into your bloodstream. A number of variables will influence the rate at which alcohol is absorbed by your body, including your sex, weight, the last time you ate, and any medical conditions you may have. Typically, however, it takes anywhere from 30 minutes to 90 minutes for alcohol to be fully absorbed into your bloodstream. As the alcohol is being absorbed by your body, your BAC level will slowly rise. The timing of your chemical test, therefore, can be a critical piece of the puzzle in determining whether you were, in fact, driving under the influence.
Contact a Nebraska DUI Attorney at Petersen Law Office
If you failed a breath test in the State of Nebraska, it is always in your best interest to consult with an experienced Nebraska DUI attorney about the specific facts and circumstances of your case. Contact the Omaha DUI lawyers at Petersen Law Office 24 hours a day at 402-513-2180 to discuss your case with an experienced defense lawyer.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
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