Let me start as I have all of these discussions on the subject of DUI’s by saying, “Don’t Drink and Drive!”  Now with that said, should you let the police test your breath for alcohol.  The short answer is NO, but let’s take a closer look at why.

Why a breath test?  Alcohol intoxication is legally defined by your blood alcohol concentration (BAC) level.  A BAC of .08 or above is the only scientifically objective way to prove someone is intoxicated.  The most accurate method of testing would be to take a blood or urine sample, but these are impractical for obvious reasons.   The less invasive solution is to measure the ethanol level of a person’s breath.

How does it work?  Scientists found a direct correlation between the amount of ethanol in a person’s breath and the amount of alcohol in their blood (BAC).  In Oklahoma, the police use the Intoxilyzer to take this measurement.  The Intoxilyzer uses infrared light and a very small computer to interpret and calculate the BAC from a person’s breath.

Field Test or Jail Test?  Breath tests administered at the scene are usually not admissible in court because they are not as reliable.  This means that police have to administer the test when you get to the jail.  This can cause all sorts of issues that can make the test less reliable.  What you had to eat, the machines service log, and even if you burped prior to the test can bring into question the validity of the measurement.

So, should you take the breath test?  Our opinion is, Say No Thank You, and refuse the test.  There is no upside for you.  Without the breath test the police will have only their observations and the Field Sobriety Test.  This is much easier to fight than a number from a machine.

Interesting Legal Issue…if you did take the test, there is still hope.  The Intoxylizer evidence has been found unreliable in some at least one State.  The reason is that the manufacturer can’t prove the accuracy of their device.  It is only a matter of time before the Intoxilyzer will be challenged here in Oklahoma.

Last thought…Don’t wait…Hire an attorney right away, especially if you have a valid driver’s license.  There are several things a good DUI attorney can do for you, but every minute you hesitate places you at a greater disadvantage.