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When Are Breath Tests Considered Valid?

If you are stopped and arrested for a charge of driving while intoxicated, it’s likely that you will be given a breath test to determine your blood alcohol content (BAC).

There are standards that must be followed in order for the sample to be valid. Here are a few common questions people have about the process.

How many opportunities do you have to give a breath sample? Just once or multiple times?

In New Jersey, police officers use a breath testing machine called the Alcotest 7110. This device is programmed to accept up to 11 separate samples. That means you may be given 11 opportunities to blow into the breath testing machine.

This doesn’t mean, however, that the officer has to give you all 11 chances. The law does not specify the number of attempts that you must be provided before considering it a refusal. In some cases, the police officer may jump the gun and only give you a few tries. Typically, if you blow poorly into the machine once or twice, that probably wouldn’t be considered a refusal under the law since you weren’t given additional opportunities, but it will depend on the specifics of your situation and your case.

How can the officer tell if I provide enough air into the machine?

In some cases, you may have been trying to provide a breath sample, but you just didn’t reach the required amount. The Alcotest utilizes a display screen where the officer can see asterisks appearing that indicate you are providing a breath sample. Ten asterisks indicate that you have met the breath testing criteria for sample amount. The Alcotest 7110 will provide a printout including information for all attempts made and the amount of breath sample provided. The required amount is 1.5 liters.

Can you blow too much air into the breath test machine?

No, that’s not possible. However, it is possible to blow too fast or too slow for the machine. Each machine has a standard flow rate that needs to be reached in order to work properly. Otherwise, the sample will be considered invalid. It doesn’t happen often, but it is possible.

How can I use this information to help my DUI or DWI case?

If you were charged with a refusal for submitted to a breath test, you can fight it. There are many reasons why you may have tried to provide a valid breath sample to the police officer but were unable to do so.

The best way to build a defense is to work with a knowledgeable DUI attorney. Defending a refusal charge in the best way possible involves knowing the science of breath testing and knowing where to look in police records to spot errors or omissions.

Remember, being charged with a DWI or Refusal is not the same as being convicted. You can fight and win.

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