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When Breathalyzer tests do not work

When New Jersey drivers are pulled over in a traffic stop, they may be asked to take a Breathalyzer test if the police officer believes they are impaired. However, passing a Breathalyzer test does not mean that a driver is off the hook.

Breathalyzers measure the amount of alcohol vapor that is in the driver's breath. While the results of a Breathalyzer test are widely used in court, they can have some drawbacks. The Breathalyzer assumes that all of the air that is being tested is from the driver's lungs. However, it can measure alcohol that may be trapped in the driver's mouth or throat. It may also detect alcohol that is present in mouthwash or other similar products. Further, alcohol is not absorbed into the blood all at once. If the test is delayed for any significant amount of time after the traffic stop is conducted, the driver's blood-alcohol content may be higher than when he or she was actually driving.

Under implied consent laws, drivers are required to submit to a Breathalyzer test when they are asked. If drivers refuse, they will automatically lose their driving privileges. Additionally, they may also still face a DUI charge if they have a BAC of .05 to .07 if there is other evidence of impairment.

If a driver is facing a misdemeanor DUI charge due to a positive Breathalyzer test, there may be several defense strategies that an attorney may use. A lawyer could use the "rising BAC" defense if the test was delayed. This defense argues that the test was taken well after the person had stopped driving, meaning there is no evidence he or she was impaired when behind the wheel. An attorney may also argue that the Breathalyzer test was not properly calibrated or properly administered.

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