I’ll have to go with urban legend.
IIRC the breathalyzer measures alcohol in your blood which has transferred to your breath via lungs.
Although, If the person swallowed half a jug of mouthwarsh I could see it, but then it wouldn’t be a false positive…
Except that, alcohol in your mouth will skew the results. That’s why part of the procedure involves waiting long enough for alcohol to evaporate out of your mouth.
Chemical breath tests measure the concentration of alcohol in your breath, not your blood, although the alcohol has to be in your blood first. To call the results of a breath alcohol test as your blood alcohol level is a misnomer. Note that a number of states refer to it as an alcohol concentration. (strangely, search under the “.08 BAC” issue).
So, It’ll give a "false positive"as psychonaut was asking?
But does that not give a fairly accurate BAC?
So in essence the test is actually measuring BAC, no?
If they let you swig mouthwash containing alcohol, then take a breath test, it will read alcohol on your breath, because there will be alcohol on your breath. In that manner, it would be a false positive. Alcohol doesn’t stay in your mouth very long, so this scenario won’t happen in a real-life DWI stop.
No and sort of. It gives you a fairly accurate measurement of alcohol in the breath. If you test someone to determine at what ratio the alcohol concentration varies between blood and breath, you can then calculate a blood concentration. Blood is irrelevant to breath test results. Based on breath tests results, you can make a guess as to blood concentration, but this is a general conversion. In essence, it is testing whether there is alcohol in your blood.
Answers to the OP will vary wildly from state to state. In Texas, state law says that anyone who operates a motor vehicle on Texas roadways impliedly consents to giving a breath test when arrested for DWI. If you refuse to give a breath specimen, there will be immediate civil action taken under Texas administrative law to suspend or revoke your license for a minimum of 180 days (if there was a death or serious life threatening injury involved, they can take a breath or blood sample without your permission).
The fact that you have refused a breath test will be used against you in any subsequent civil or criminal proceeding. However, so will the fact that you failed a blood test if you take one, and the vast majority that take them have a BAC over the legal limit. Most defense attorneys in Texas will tell clients not to take a breath test if offered one, despite the license suspension.
The above is not intended as legal advice, and should not be construed as such. I am not competent to render legal advice in this area. I am not your lawyer; you are not my client.
From Here
Yeah maybe I shoulda said:
“The breathalyzer measures the amount of alcohol on your breath which is a fairly accurate indicator of one’s BAC because some alcohol is transferred from your bloodstream to the air via lungs…”
There’s a lot of factors going into whether you should refuse the breathalyzer or not. In Florida, if you refuse the test your license is suspended for one year automatically (when you sign for your driver’s license you are agreeing to those terms). However, with the lack of evidence a good lawyer can get the DUI charge dropped, or reduced to something else. If take the test, then you’re much more likely and easily prosecuted with a DUI charge-- which gets your license suspended for 6 months, along with a lot of other fines and probation. This is all assuming you know you will blow over the legal limit (.08 in Florida). So basically it comes down to a choice in most cases: 1 year no driver’s license but no DUI on your record, or 6 months without a license along with a probation and a DUI on your record.
That’s my take on it. I also agree with what Random said: anyone taking legal advice from here is not very smart.
I’d buy that.
My point is, if someone takes a breath test, it is better to talk about the breath alcohol concentration than the blood alcohol concentration. The breath concentration was measured - the blood concentration is a calculation based on the measurement.
(IANAL and I make no claim as to the validity of the following. Nor do I attest to reliability of the source.) According to this site, you should:
So, apparently, you should refuse any field breathalyzier test, just to give the police as little evidence as possible.
As somebody who was stopped twenty-five times in two years with only one ticket (45 in a 40 zone), I personally follow the advice of “Be polite, but give the cops as little as possibe- especially when you’re not guilt”. Of course, YMMV.
Pece-D.E.S.K.
A side related question…
Since driving is a privlidge and not a right, I imagine that one’s fifth ammendment rights do not come into play here. As such, I would imagine, the state can summarily suspend your license for refusing to submit to a test.
However, WRT criminal matters, I would imagine that refusing to take a breathalyzer test would be within your rights, correct? Thus, while the fact that you refuse to take a test can be used against you WRT to the suspension and/or revocation of your driver’s license, it couldn’t be used against you WRT to a criminal trial for DWI.
Am I correct on this, or am I way off base?
Zev Steinhardt
Please forgive spelling errors in above. Boss was coming and I hit submit by accident while trying to close The Dope.:smack:
Peace-D.E.S.K.(Going back to work now 
)
'Fraid not, Zev. The privilige against self-incrimination is only in regards to testimonial evidence such as that that a “witness” would give. Non-testimonial evidence, such as the fact that you refused a breath test or that a forced blood test revealed a BAC over the legal limit can be used against you without violating the Fifth Amendment, even if compelled.
D.E.S.K.-important to note that that site is purporting to give the law for California. As others have said above, what you should and should not do will vary from state to state.
OK, then how about the Fourth Ammendment? Can I have the breathalyzer results of a forced test thrown out (unless the cops had a warrant) in a criminal trial?
Zev Steinhardt
Note to all- if you are convicted of a DUI, be sure to ask your Lawyer about this if you are stopped again- then- follow his advice.
Zev- I don’t think that without a warrant they CAN “force you”- if they did, I have serious doubts. But they can 'coerce" you by telling you what will happen if you refuse.
Good question. The general answer is it depends. “Exigent circumstances” will usually relieve the police of the warrant requirement so long as probable cause exists. For example, if the police think you are being murdered in your house they can enter without a warrant. The same goes for evidence; if the police believe that evidence is going to be destroyed by delay they may seize it. Getting a warrant takes time, and by the time they got one, you’d be sober.
In assessing whether or not there is a risk to destruction of evidence sufficient to excuse a warrant, courts take into account not only the destructability of the evidence but the seriousness of the offense. In Texas, a blood or breath test may be forcibly taken without a warrant if the suspected DWI resulted in death (which would also constitute intoxication manslaughter) or life threatening injury. A first time DWI is a class B misdemeanor, and probably wouldn’t be serious enough to merit the forcible taking of a breath or blood sample without a warrant.
There is a big difference between discussing a hypothetical “what if” legal query, and “I have a specific legal problem, and I need your help” type of question.
Maybe this: Is “refusal to submit” allowed as a contributory factor in related other crimes? For instance, DUI manslaughter seems to be punished worse than just a manslaughter.
I’m thinking that the fact that “refusal to submit” has the same penalties as being provably drunk, doesn’t actually prove you’re drunk. Which could be relevant in court at some later time.
I’d like to hear more about this one from the IAAL types here. You aren’t refusing the alcohol test, you’re requesting legal advice before deciding. Even after reading all the posts so far, I feel I’d need legal advice to make an informed decision, at least in part because the “correct” answer can vary state to state.
pravnik, I like to think that I would have thought to add that had I not accidentally hit submit. Of course, even for my fellow Californian Dopers, I make no claims as to the soundness of the advice given on the linked site. I just used it due to the fact that the Lawyer who owns it constantly runs ads on the radio station I listen to.
Peace-D.E.S.K.
May I ask why you get pulled over by the police so often?