page_title: Breathalyzer
section_title: Breath test evidence in the United States
hierarchical_section_title: Breathalyzer / Breath test evidence in the United States
caption_attribution_description: Breathalyzer Dräger[1] Alcotest 7110 "Evidential"
context_page_description: A breathalyzer or breathalyser is a device for estimating blood alcohol content from a breath sample.
  The name is a genericized trademark of the Breathalyzer brand name of instruments developed by inventor Robert Frank Borkenstein in the 1950s.
context_section_description: The breath alcohol content reading is used in criminal prosecutions in two ways. The operator of a vehicle whose reading indicates a BAC over the legal limit for driving will be charged with having committed an illegal per se offense: that is, it is automatically illegal throughout the United States to drive a vehicle with a breath alcohol concentration (BrAC) of 0.08% or higher. One exception is the state of Wisconsin, where a first time drunk driving offense is normally a civil ordinance violation.
  The uniformity is due to federal guidelines that states choose to adopt as motor vehicle laws are enacted by the individual states. It is said that the federal government ensures the passage of the federal guidelines by tying traffic safety highway funds to compliance with federal guidelines on certain issues, such as the federal government ensuring that the legal drinking age be the age of 21 across the 50 states. In earlier years, the range of the threshold varied considerably between States.
  The breath analyzer reading will be offered as evidence of that crime, although the issue is what the BrAC was at the time of driving rather than at the time of the test. Some jurisdictions, such as the State of Washington, now allow the use of breath analyzer test results without regard as to how much time passed between operation of the vehicle and the time the test was administered. The suspect will also be charged with driving under the influence of alcohol (sometimes referred to as driving or operating while intoxicated). While BrAC tests are not necessary to prove a defendant was under the influence, laws in most states require the jury to presume that he was under the influence if his BrAC is found and believed to be over 0.08 (grams of alcohol/210 liters breath) when driving. In California, this is once again demonstrated by California Vehicle Code Section 23152(b) and Cal-Crim 2111, which states: "If the People have proved beyond a reasonable doubt that a sample of the defendant's (blood/breath/urine) was taken within three hours of the defendant's [alleged] driving and that a chemical analysis of the sample showed a blood alcohol level of 0.08 percent or more, you may, but are not required to, conclude that the defendant's blood alcohol level was 0.08 percent or more at the time of the alleged offense." This creates a rebuttable presumption, which means it is presumed, but that presumption can be rebutted if a jury finds it unreliable or if other evidence establishes a reasonable doubt as to whether the person actually drove with a breath or blood alcohol level of 0.08% or greater.  This would not apply to States that have done away with the presumption, such as the State of Washington, as previously referenced.
  Infrared instruments are also known as "evidentiary breath testers" and generally produce court-admissible results. Other instruments, usually hand held in design, are known as "preliminary breath testers" , and their results, while valuable to an officer attempting to establish probable cause for a drunk driving arrest, are generally not admissible in court. Some states, such as Idaho, permit data or "readings" from hand-held preliminary breath testers or preliminary alcohol screeners to be presented as evidence in court. If at all, they are generally only admissible to show the presence of alcohol or as a pass-fail field sobriety test to help determine probable cause for arrest. South Dakota had previously relied solely on blood tests to ensure accuracy, but has implemented evidential blood alcohol breath tests since Sep-2011.
  Historically, states initially tried to prohibit driving with a high level of BAC, and a BrAC test result was merely presented as indirect evidence of BAC.  Where the defendant had refused to take a subsequent blood test, the only way the state could prove BAC was by presenting scientific evidence of how alcohol in the breath gets there from alcohol in the blood, along with evidence of how to convert from one to the other.  DUI defense attorneys frequently contested the scientific reliability
caption: An evidential breath tester
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