I took a breathalyzer with smokeless tobacco in my mouth.

[cmitchell06]

I'm from Virginia and was given a Breathalyzer at a party and was never asked if I had any foreign substances in my mouth. At the time I had a dip of smokeless tobacco in my mouth. I failed the test needless to say but could I argue in court that the breathalyzer test in not reliable because proper procedure wasn't followed?

 

[You Are Guilty]

I'm from Virginia and was given a Breathalyzer at a party and was never asked if I had any foreign substances in my mouth. At the time I had a dip of smokeless tobacco in my mouth. I failed the test needless to say but could I argue in court that the breathalyzer test in not reliable because proper procedure wasn't followed?

Were you chewing that new alcoholic tobacco I've been hearing about?

 

[Just Blue]

Were you chewing that new alcoholic tobacco I've been hearing about?

Jack Daniels Chewing tobacco??

 

[paguy88]

I chew copenagen. I know they make some whiskey chew... I have tried it...

now could a dip of this get you over .08?

wow I would find that hard to believe... however you never know....

any thought?

 

[cmitchell06]

I don't think any sort of tobacco would be enough to get you over a .08. My only hope would be that the breathalyzer was not valid because of a foreign substance in my mouth that I was not told to remove that could make the breathalyzer illegitimate in court. Is something like that possible?

 

[moburkes]

I don't think any sort of tobacco would be enough to get you over a .08. My only hope would be that the breathalyzer was not valid because of a foreign substance in my mouth that I was not told to remove that could make the breathalyzer illegitimate in court. Is something like that possible?

No. But, you're more than welcome to pay an attorney to say otherwise.

 

[sjmjuly]

I don't think any sort of tobacco would be enough to get you over a .08. My only hope would be that the breathalyzer was not valid because of a foreign substance in my mouth that I was not told to remove that could make the breathalyzer illegitimate in court. Is something like that possible?

The chew wouldn't get you over .08, but the alcohol you drank would certainly put you over the legal limit.
I don't think you have much of a shot in hell with that defense.

 

[CavemanLawyer]

I'm confused, were you actually arrested for DUI? If so, and you took this breath test "at a party" than you did not take a breathalyzer test you took a portable breath test which is generally not admissible in court.

If you took an actual breath test back at the intoxilyzer room than chewing tobacco could absolutely alter the BAC results, but if that happened than the machine would have detected an interferant and canceled the test.

The fact that you say they tested you at a party makes me wonder if you weren't charged with public intoxication or minor in consumption. Can you give us some more information please?

 

[cmitchell06]

I'm sorry I guess I wasn't clear at all. I was charged with underage possession by consumption. This will be my second one so I really need to avoid being charged with this. § 9.1-1110 of the Code of Virginia states the proper procedure for issuing a breath test and in article 3 it states that whoever is being tested must be observed for 20 minutes before the test is issued to make sure that nothing interferes with the results. Since I was not observed or even asked if i had any foreign substance in my mouth I would think that means the cop did not do his job. Can this get my case thrown out?

 

[CavemanLawyer]

After reading that section of Virginia's law I am fairly certain that the 20 min waiting period only applies to the Intoxilyzer machine, not to a preliminary breath test device like the PBT that you blew into. Under that section it talks about the observation period, the air blank and control sample, the operator's license and the certified instructor...all of these are specific to an Intoxilyzer machine. Under that section of the law the only requirement for conducting the PBT is that it be used in conformity with the manufacturer's operating procedures.

There really aren't many precautions needed for a PBT because by its nature it is not intended to determine an accurate BAC level. The point is mostly to determine whether there has been any amount of alcohol consumption at all. Tobacco could potentially sway the results of the test, but I don't think any amount of tobacco use is going to give you a result other than 0.000 if you hadn't had any alcohol to drink, and all the State has to prove is that you consumed some amount of alcohol.

 

[cmitchell06]

Thanks for the insight. Looks like i'm screwed.