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Breathalyzer Defense

There are generally three ways for a Vermont DUI attorney to attack a DUI breathalyzer result.

Vermont DUI law allows the police to request two different breath tests. The first is almost always done before an arrest is made and is called a Preliminary Breath Test. The second is given at the police station and is called an Evidentiary Test.

The Preliminary Breath Test is not admissible into evidence at a Vermont DUI trial. Instead, this DUI breathalyzer is only used to prove to a judge that the police officer had “probable cause” to make the DUI arrest. A jury will never hear of this test result.

The “Evidentiary Test” test result IS shown to a jury. Vermont uses a machine called a Datamaster for this.

A Vermont DUI lawyer will explore excluding this test result from evidence as part of the DUI breathalyzer defense.

There are three general avenues to use. First, the attorney explores whether the test should have been given at all. If the officer had no reason to pull the defendant over in the first place, or did not comply with Vermont DUI law afterward, then all of the evidence collected after that moment can be excluded.

Second, the officer must follow Vermont’s Implied Consent Law – or the DUI breath test result can be excluded. This law gives the police permission to seek the Evidentiary Test – but only if they comply with Vermont’s Implied Consent Rights. These rights include the right to talk to a lawyer before taking the Evidentiary Test at the police station, the right to a second breathalyzer test if the first one is the legal limit, and the right to an independent blood test after being released.

The third DUI breathalyzer defense involves investigation into the accuracy of the machine. Because they look for tiny amounts of alcohol, they must be operating perfectly. If the maintenance records reveal a flawed machine, the test result can be excluded.

Contact Kenney & Henchen.

Or call us: (802) 871-5638.

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  • Colchester Office
    78 Severance Green
    Suite 108
    Colchester, Vermont 05446
    Phone: 802-871-5638
    Fax: 802-419-3323