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Breath Test

In Colorado, the breath test must be conducted on a certified evidential breath test instrument by a certified operator/instructor. The breath test must be performed according to standard operating procedures. These are set by CDPHE Evidential Breath Alcohol Testing Unit of the Laboratory Services Division who are responsible for the implementation of the requirements for breath testing. The purpose of a breath alcohol test is to determine the concentration of alcohol in the subject’s breath.

When the test is conducted according to the prescribed guidelines, the courts consider the breath alcohol test is an accurate, reliable, and scientifically accepted method for measuring the alcohol content of a person’s deep lung air sample. However, these tests are not always performed correctly, and some have reported skewed BAC results due to external factors.

A criminal defense attorney can present evidence showing that the breath test machine was not accurate or reliable in your case, that the breath test machine was not properly maintained, or that the breath test was not properly administered. By doing this, the attorney can undermine the prosecution’s case and ultimately receive reduced or dismissed charges.

If you’ve recently refused or complied with a DUI breathalyzer or breath test, it’s within your best interest to consult with an experienced Colorado DUI defense attorney.

DUI Attorney for Breathalyzers in Denver, CO

Attorney Matthew Martin has the knowledge and skills to fight DUI charges due to failed or refusal of breath testing. He conducts an audit on the breath test instrument used in your case to determine whether it was in proper working order and maintained in compliance with the administrative rules. This audit can then supply valuable information attorney Martin can utilize to defend your case and ultimately help you avoid the maximum statutory penalties.

Matthew Martin represents clients charged with DUI related offenses throughout the state of Colorado, including the Denver metropolitan area. He also represents clients on drunk driving charges in the surrounding areas in the Front Range region including Douglas County, Adams County, Broomfield County, Boulder County, Arapahoe County, and Jefferson County.

Call (303) 725-0017 for a free and confidential consultation to discuss any administrative suspension of your driver’s license, the pending criminal charge, and the best ways to fight the charges.

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How Breathalyzers Detect Alcohol

In Colorado, breath testing instruments use infrared analytical technology. The test was designed to use infrared light that is absorbed by the alcohol molecule known as ethanol. The more ethanol present in the sample chamber, the higher the alcohol reading will be. Under Colorado law, the results of a breath test are reported as grams of alcohol per 210 liters of breath.

Each direct breath test uses a reference sample. The instrument must then analyze the reference sample within an agreement of plus or minus ten percent of the known reference value.The way the instrument measures the reference sample helps establish the accuracy and calibration of the instrument when the test is performed.

During the breath test, the subject is required to provide an adequate breath sample each time to fulfill the testing requirements. If the subject does not perform the test after a reasonable amount of time, the breath test technician will note the person’s efforts. If the subject’s conduct is considered to be willful, then the failure to submit to the breath test will be treated as a refusal.


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Understanding Breathalyzer Results

Pursuant to the CDPHE Rule and Regulations promulgated by the Laboratory Services Division of the Department of Public Health and Environment, the term “Evidential Breath Alcohol Test (EBAT)” is defined as an evidentiary breath alcohol test performed using a certified evidential breath alcohol testing instrument approved by the Department as described by section 42-4-1301, C.R.S.

Pursaunt to 4.1.3.5, the results of the two subject samples must agree with each other within 0.020 grams of alcohol/210 liters of breath. If the 0.020 grams of alcohol/210 liters of breath correlation is not obtained with the subject samples, the instrument will discontinue the test sequence and print a “No .02 Agreement” Exception Message.

When a “No .02 Agreement” Exception Message is obtained, the certified EBAT instructor or operator must repeat the twenty (20) minute deprivation period prior to retesting the subject.

The two subject breath samples must meet the minimum measurement requirements in order to obtain a result. If the breath sample does not meet the minimum sample requirements, it will result in an “Invalid Sample” Exception Message.

If an “Invalid Sample” Exception Message is obtained, the certified EBAT instructor or operator must repeat the twenty (20) minute deprivation period prior to retesting the subject.


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Testimony by the Breath Test Instrument Operator in Colorado

At trial in a breath test DUI or DWAI case in Denver, CO, the breath test instrument operator will usually testify about the following:

  • A description of the breath test instrument; and
  • A description of the operation checklist used to take the breath sample.

At trial, the prosecutor will seek to admit a copy of the Evidential Breath Alcohol Test Report (including a CDPHE certificate and Instrument Performance Report) into evidence.Before the prosecutor can show the jury the breath test result, the prosecutor must first present an adequate foundation showing the test was done properly by an officer who was qualified to administer the breath test.

The prosecutor must also show that the breath test was performed on an instrument in proper working order.


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Legal Issues to Consider in Breath Test Cases

Issues in breath test cases include whether:

  • The breath testing instrument was properly certified by the Department of Public Health and Environment and whether the certification was current at the time of the test;
  • The breath test instrument operator was properly certified by the Department of Public Health and Environment to administer the test and whether the certification was current at the time of the test;
  • The officer observed the driver for the required 20-minute observation time;
  • The driver consent to the test;
  • The test was properly administered;
  • The time of the test was within two hours of the violation;
  • The test results were over 0.08 grams of alcohol per 210 liters of breath; and
  • The officer followed department procedures for the breath testing instrument.

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 What Can Cause a False Positive on a Breathalyzer Test?

Since it’s a tested and scientific method, most people assume breath analysis is a trusted and accurate process. Unfortunately, this cannot be further from the truth. Breathalyzers or any device used to measure breath samples are prone to error by external and internal factors. Some of these factors are as simple as having a certain diet or the weather during the stop.

Listed below are some common factors that may influence a breath test.

  • Taking cold medicine before driving
  • Having acid reflux
  • Having diabetes
  • The person pulled over has a slow metabolism
  • The person is on a diet
  • The device was calibrated incorrectly
  • The driver hiccuped, belched, or vomited right before the test
  • There are traces of alcohol in the person’s mouth
  • The temperature of the person’s breath
  • Electromagnetic interference with the breathalyzer such as cellphone signals
  • The officer read the results incorrectly
  • The driver works regularly with paint, cleaning solvents, lacquer, and other alcohols

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What Happens If You Refuse a Breathalyzer Test in Colorado?

In Colorado, motorists by law have given implied consent to submit to a chemical BAC test such as a blood analysis, breathalyzer test, or urinalysis. If you are pulled over and asked to submit to a DUI or DWAI test, then you are implicitly bound to take it under Colorado law. The state of Colorado refers to this legislation as “express consent” law, which applies to DUI chemical tests if you are arrested on suspicion of:

  • Driving under the influence of alcohol (DUI)
  • Driving while ability is impaired from alcohol or drugs (DWAI)
  • DUI “per se” meaning their BAC is .07 % or higher
  • DUI involving marijuana
  • Underaged drinking and driving

The penalty for violating implied consent laws isn’t criminal and may be worth it to avoid the statutory harsh penalties of a DUI or DWAI. Refusing to submit to a DUI test in Colorado will result in a one-year automatic suspension of your license. You’ll also be branded as a “persistent drunk driver” (PDD), even if it’s your first DUI.

In addition to these penalties, you’ll also be required to:

  • Undergo a mandatory alcohol and drug education & treatment program
  • Have an ignition interlock device on your car for at least one year after your driving privileges have been restored
  • Must carry your SR-22 insurance even if you are not convicted of DUI or DWAI

Although these consequences are nothing to take lightly, it may be better to refuse a breathalyzer test rather than comply. The main advantage of refusing a test will mean there’s no proof of your BAC if it’s over the legal limit. The prosecution will not have any scientific concrete evidence of your intoxication, which is a required element to prove DUI. There really is no one-size-fits-all answer for this and it’s best to contact an attorney before you comply with any BAC test, so you make the best decision possible for your situation.


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Additional Resources

Testing and Refusal | No DUI Colorado – Visit the official website for No DUI Colorado which was created by the Persistent Drunk Driver Committee (PDD) as an educational resource for the community. Access the site to learn the penalties for refusing a chemical test, the difference between preliminary testing and chemical tests, and what behaviors are counted as a refusal.

Buy a Breathalyzer | Colorado Department of Transportation – Visit the official website for the Colorado Department of Transportation (CODOT) to learn more about how you can help reduce DUI incidents in the state. Access the site to learn how a car breathalyzer works, different providers for them by CODOT, and tips to avoid DUI charges.


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Denver DUI Attorney for Breath Tests in Colorado

Remember that the Colorado criminal justice system has all the cards stacked in their favor until you hire an attorney. Only then do you have a fighting chance. If you or someone you know has been arrested for failing or refusing a breathalyzer test, we suggest you contact Law Office of Matthew A. Martin, P.C.. Matthew Martin has 22 years of diverse trial experience he can put to the test for your case.

We know this is a stressful, upsetting, and tumultuous time. It can be difficult to think clearly in light of everything that’s going on. But hiring Matthew Martin to represent your interests in court might be the single best decision you can make right now. Don’t wait another moment to secure trusted legal representation by calling our offices at (303) 725-0017.

Law Office of Matthew A. Martin, P.C. is located in Denver, but accepts clients throughout the greater area including Arapahoe County, Boulder County, Broomfield County, Jefferson County, Douglas County and Adams County, Colorado.


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