Breathalyzers in Annapolis DUIS

If law enforcement can qualify that there is reasonable and articulable suspicion, they can ask a person to undertake a breath test using a breathalyzer machine, also known as an intoximeter.

The intoximeter does have a great deal of reliability that prosecutors and officers rely on in their cases. Judges presume that the machine is operating correctly and is reliable. However, breath test results can be challenged. It is a common misconception that breathalyzers are a fault-free machine. An Annapolis DUI lawyer can analyze the circumstances of a breath test and potentially challenge the results.


After a DUI stop, the person being stopped is transported back to the station and tested, all of which must occur within a two-hour time frame. The test is taken by a third party chemist or an operator. The machine has to be turned on with proper information entered. All machines have a serial and a lot number as well as an expiration date. Additionally, they have the date, time, and location of where they are.

The operator’s name, the individual’s name, and the arresting officer’s name are used in the report. The operator was not at the scene and  was not involved in any way in the standard field sobriety test. They are present to oversee if a person will blow into the machine as he or she is supposed to, which is done after a 20-minute observation period.

A person cannot have anything in his or her mouth, cannot burp, and cannot be throwing up as these things would diminish the reliability of the test.

There are a series of tests that the machine does. First, the machine self-tests, clears itself, registers again with what will be somewhere in a small window just around 0.8, clears itself, and then the person will blow into the machine to get a breath score. The individual will be tested twice at this time. If there was some unreliable change or was greater than 0.2 on a person’s first and second scores, the machine may need a third score.


The fact is, there are plenty of reasons to wonder just how reliable this machine is. The newer ECIR2 machine is more reliable than previous models and if they continue to develop, they will get much more reliable over time.

The machine is testing for the concentration of alcohol for 210 liters of breath and that the operation of the machine itself is followed. The breath test sequence must be initiated properly, the information must be entered properly, and the instruments accuracy must be verified for a reliable result.

The state’s attorney’s office, as well as officers in the department, are well aware that there sometimes are issues with the machines, so when the machine does not function properly, they should have a second machine on hand.

There is preventative maintenance to make sure that these machines are used properly. However, things can come into regard that would affect the reliability—any residual alcohol from GERD, acid reflux, gastroesophageal issues—as well as other medical issues that have been proven by experts.

False Positives

Having something recently spilled on the person or in the environment around them can create a false positive. Some possibilities are:

  • gasoline
  • paint
  • cleaning supplies
  • straight alcohol or anything with a high alcohol concentration

If the person has thrown up, has been burping regularly, or has GERD or serious indigestion, the result of the test may also be affected. These are rare circumstances, but if they are applicable to an individual’s situation, he or she needs to tell his or her DUI lawyer.


An intoximeter self-calibrates. It is tested, it has expiration dates, it has lot numbers and serial numbers. When it turns on, as well as when it is first set up, it will test itself. All of these things need to be tracked and updated. By the expiration date, it must be tested and recalibrated again.

Any calibration should be done by the machine when it is turned on. It self-authenticates, sets itself up. It shows that the machine is passed its testing. The operator simply just follows the exact procedure in which they have been trained.

The calibration procedures are very specific and each step must be followed. Issues may arise if the machine is not plugged in properly, is not set with the proper time, or if the testing is done in a hot room.

Challenging Results in Court

A person can challenge breathalyzer results if the observation period of 20-minutes was not met. If the breath tests are given after two hours or if the observation was not made, the judges will believe that the person was not properly handled by the test. If the test was not done in accordance with procedure, it could negate the results.

The NHTSA has a model that has to be followed. If there are any variants in the use of the intoximeter, the defense gains weight and credibility ; it should take away from the state’s case.

One can also subpoena the records of the machine if it has had faulty tests in the past. If it had substantial numbers, then a lawyer needs to present that. If there are circumstances that would suggest that the test itself is inconclusive, then a person can challenge it.

Deciding to Take a Breath Test

A person does not have to submit to a breath test, they are given a person is given DR15 form and he or she is advised of his or her rights. However, the Motor Vehicle Administration can have penalties that are much harsher if he or she refuses—270 days of suspension or one year of an ignition interlock for a first offense. A person does not have to give a sample because it can be used as evidence against that person.

The confrontational clause and the Sixth Amendment of the US Constitution state that in criminal prosecutions, a person has to be confronted by his or her witnesses and a person has the ability to cross-examine these witnesses. They must be present at trial.

The witness is the operator, who has to come in and testify that the machine was operated properly and that all testing procedures were followed in accordance with the NHTSA manual and the ECIR2 machine’s operations were standard. If a person does not give a breath swab, then that individual cannot testify against that person. That is one less voice to try to show that he or she is, in fact, guilty.