Question: What are some potential defenses for failing the official breath test in Alabama?
Answer: There are many defenses, even if the breath test administered at the jail registers above the legal limit. The law in Alabama is predicated not on what your breath test result is or was at the jail; but rather, at the time you were driving or were in actual physical control of your vehicle. So depending on the time interval, we can put on what’s called a rising alcohol defense where you might have been higher at the jail then at the time of driving. As well, there are defenses in terms of the administrative procedures that the police officers must follow in administering the tests. One of the big procedures that we find is oftentimes not followed is what is called the 20-minute deprivation period. There are things that we can do to back track and recreate a timeline showing that the officers failed to follow this 20-minute deprivation period, such as gathering booking documents, booking room video, radio traffic and what’s called the CAB report. As well, the certification of the officer must be up to date. There could be mouth alcohol issues, interference, ambient air errors, RI interference, machine errors. And as well, you have the right, if you do take the test, to request an independent test. And if the officers fail to provide you that opportunity, it serves as a basis to suppress the initial result.
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