- Mouth or Esophageal Contamination. Breath tests can be attacked because they mixed alcohol breath with alcohol from places other than deep lung air. Your mouth may trap alcohol. One way is dentures. Another is cavities, or bleeding gums, pockets, or plates. Your stomach may be creating alcohol from ulcers, hernia, gastric reflux or many other things. You might have a cold. This can trap alcohol. Mix that with your alcohol breath and the test can give a false-positive reading.
- Missing or Uninformed Witnesses on Big Points. Cross-examination of key state witnesses about the breath test process is a good way of creating reasonable doubt. Ask them how the machine works. Ask them to tell us all about it. And when they don’t, reasonable doubt. But to create the conflict with questions you’ve got to know the tests like the back of your hand.
- Implied Consent Warning Problems. Georgia makes the police officer strictly comply with the implied consent laws. He might mess up. There are many ways. From accommodating a request for an independent test to requiring a timely, non-confusing, non-coercive reading of the notice, these things can totally exclude any test.
- The Prosecutor’s Witnesses Say Different Things. When the State’s witnesses tell different stories about important facts of your arrest and testing and timeline protocols, jurors easily see the doubt.
- Disconnect. You show that the high test reading is wrong because the video shows you looking fine. The high test reading is wrong because you were sober and you’ve got an eyewitness that will say so. The high test is wrong because you were fine and you’ve got medical experts, or scientific (forensic) experts to back you up. All of this means one thing: There’s a disconnect in the evidence. The State can’t prove their case beyond a reasonable doubt.
- Disease May Cause a False Reading. Are you healthy? Do you have an unbalanced diet? Are you trying to lose weight? Your body may be making ketone (a chemical like alcohol). The ketone production can add to a breath test sample. The machine will never know it wasn’t your breath.
- The Device and Quality Assurance Used in Georgia is Not State-of-the-Art. The Intoxilyzer 5000 machine is looked down upon across America. Sweden quit using it years ago. It ain’t good enough for Alabama, Mississippi, Florida, New York, Massachusetts, Wisconsin, Minnesota, Arizona, and more states. The reason they don’t use it is because it’s obsolete and old. Georgia uses it. There are a lot of ways to skin this cat.
- Foundation Not Laid or Documents Show Reason for Doubt. Sometimes, the prosecutor forgets to prove things. For example, the 3 hour rule relating the time of driving to the time of testing. Also, by going after things in Discovery, your expert may show that the machine’s quarterly checks showed the area supervisor has lied that the device passed when it did not.
