If you were recently arrested in the Omaha, Nebraska area for driving under the influence, or DUI, you are probably concerned about the outcome of your case. After all, a DUI conviction can have long-lasting and far reaching consequences. Like many people in your situation, the most troublesome evidence the State has against you is likely the result of the breath test you took after being placed under arrest. If your results showed a breath alcohol concentration (BAC) of over the legal limit (0.08 percent) you are presumptively guilty of driving under the influence. Therefore, you may be wondering is an Omaha DUI attorney can get the breath test thrown out. Only an experienced Omaha DUI defense attorney can evaluate the unique set of facts and circumstance surrounding your arrest, including your breath test, and provide you with a specific answer to that question in your case; however, some basic information about how the breath test works and what an Omaha DUI attorney would need to prove to get the results thrown out might be helpful in the meantime.
Your DUI Stop
In order to answer any questions about a DU arrest it helps to cover the initial traffic stop first. Contrary to what people often believe, a law enforcement officer must have a valid reason to stop a motorist in the first place. That valid reason can be a “pretextual” stop, meaning that the officer used a simple traffic infraction as a reason to conduct a stop, but the officer must have a reason. If the officer who stopped you did not have a valid reason, the entire stop could be declared illegal and any evidence obtained during or after the stop could be inadmissible in court. If the officer did have a valid reason for the stop and then noticed signs of intoxication or driving under the influence, a valid traffic stop can turn into a DUI investigation at that point.
How The Breath Test Works
During your traffic stop you may have been asked to perform a portable breath test on the side of the road. The results of this test cannot be used in court but can be used to provide the probable cause needed for your arrest. Once you arrived at the station or jail is when you were likely asked to submit to an actual breath test. The way a breath test works is actually relatively simple. As you drink alcohol, the alcohol runs through your body and is absorbed into your blood stream. From there is passes through a variety of places, including your lungs. A certain amount of alcohol will become trapped in your lungs. When you take a breath, you then blow that alcohol out with each breath that you exhale. A breath test machine is designed to measure the amount of alcohol present in your breath when you exhale. If alcohol is present, it will determine what percentage of your breath contains alcohol and provide a reading. In the State of Nebraska, the legal limit is 00.08 percent, meaning if your test results exceed that percentage the test results will be used against you as evidence that you were driving under the influence.
Can’t My Omaha DUI Attorney Get the Results Thrown Out?
People hear about evidence getting “thrown out” and assume that it is easy for an attorney to make it happen. It is not easy, but may be possible. Your attorney will need to prove that the results are flawed or that the test was conducted illegally and/or without proper consent. Sometimes, for example, the test operator failed to follow the agency’s written procedures for conducting the test, resulting in a potentially contaminated test. It could also be the case that you did not give your proper consent to take the test. If you failed to give your consent, and the officer effectively forced you to take the test, that failure to give consent is another reason that could be used to try and exclude the results of the test. Be sure to consult with an experienced Omaha DUI lawyer about the chance of getting your results thrown out.
Contact Us
If you have been charged with driving under the influence, or DUI, in Nebraska contact the Petersen Law Office 24 hours a day at 402-513-2180 to discuss your case with an experienced DUI defense attorney.
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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