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DUIs and Delayed Breath Tests

Author: Portner & Shure

If you blow a .08 in a breath analyzer test hours after you are arrested, can you be convicted of a DUI? The Court of Appeals in Virginia answered this question just last month. When defendant was stopped at 2:30 a.m., he was not given a BAC test at that time. It was only until 4:48 that he was given a test, of which he blew .08.

It is believed that the defendant did not consume any alcohol between the time he was stopped and the time his test was administered. Furthermore, there was no evidence that the defendant had been drinking in his vehicle. Thus, evidence suggests that the defendant's BAC was higher at the time he was stopped than at the time he was tested and that his body had been lowering in BAC between .015 and .02 each hour.

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