Can I Talk With My Attorney Before I Take a Breath Test?

In most states, you do not have the right to have your lawyer present (or to even call an attorney on the telephone) while making your decision to either accept being tested or to refuse the blood, breath or urine testing. This means the police do not have to give you access by phone or in-person to an attorney when you are being pressed to make this critical decision. So if you ask the officer, “Can I talk with my attorney before I take a breath test?”, you will probably be told no.

Such a request to speak to legal counsel can even be considered a refusal of this testing in some states, while not in others. In a few states, you have a reasonable amount of time in which to consult with counsel while you are making up your mind about whether or not to submit to the test.

Is the Portable Breathalyzer Test Result Admissible in Court?

In most states, alcohol analyzers may be used as a part of the screening or preliminary procedure used by police as a part of their roadside evaluation to determine whether or not to arrest you for DUI-DWI. These are smaller, hand-held devices that are battery-powered. While most devices give a numerical value as to an estimated blood alcohol level, this number is so unreliable as to not be accepted as admissible evidence at trial in most states. Such preliminary breath test results typically are used only for a determination as to whether you have the presence of or an absence of any alcohol on your breath.

Even in states that allow an officer to use a hand-held roadside breath analyzer, an evidentiary foundation usually has to be made by the prosecution in order to be able to use ANY results, but this is not true in every state.

In some states, the use of roadside or handheld alcohol sensing devices is a part of the implied consent testing allowed by statute. In most states, however, it is not the value that comes up on the machine that is important.

Rather, if the test shows alcohol on your breath, this is yet another indicator to the officer that he or she might have sufficient circumstantial evidence of possible impairment to request a blood or an “evidential” breath test at the jail or precinct (police station). The numerical value that is indicated on the digital screen on these hand-held machines after your breath test is a non-evidentiary result in the majority of states.

However, most states that prohibit mentioning numerical results do permit the officer to say whether the screening device was positive for alcohol or not. Unfortunately, these hand-held devices can be fooled into giving a “positive” result for alcohol if you have recently used a commonly-sold cough drop.

In some instances, the preliminary analyzer results will be LOWER than the official state breath testing device. If this is a key part of your defense, the favorable “low” results may be admissible at your trial, under the federal constitution.