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Breath Testing


DUI Breath Testing for BAC

After an arrest for DUI in the state of Utah, the arresting officer will ask you to submit to chemical testing. The officer usually asks you to submit to a breath test on a breathalyzer called the Intoxilyzer 5000 or the Intoxilyzer 8000. If you blow over the legal limit of .08, Utah law provides for a per se version of DUI that focuses on the breath alcohol concentration, even if the prosecutor cannot prove that you were so impaired by alcohol that you were incapable of safely operating a motor vehicle.

UPDATE: Utah Governor Gary Herbert signed HB 155 into law changing the legal blood alcohol level from 0.08 to 0.05. The bill will take effect December 30, 2018.

Salt Lake City DUI Breath Test Attorney

If you were charged with DUI after submitting to a breath test in Salt Lake City or the surrounding areas, then contact an experienced DUI attorney at Levitt Legal. Find out how problems with Utah’s alcohol testing program could lead to the court excluding or suppressing the breath test results obtained by the police officer in your case.

Darren Levitt represents clients charged with DUI after a breath test reading over the legal limit of .08 in Salt Lake City, and Ogden metropolitan area, which include Salt Lake County, Davis County, and Weber County, Utah. Call today to speak directly with Darren Levitt about the particular facts and circumstances of DUI arrest and subsequent breath test on the Intoxilyzer 5000 or Intoxilyzer 8000.

Blowing Above the Legal Limit Does Not Mean You Will be Convicted of DUI

After a DUI arrest in Utah, many people assume that if they blow over the legal limit of .08, the case will end with a conviction for DUI. In many cases, however, more favorable results occur including a reduction to lesser charges or an outright dismissal. In other cases, the client may decide to take the case to trial even if the breath test reading is over the legal limit.

Utah’s Intoxilyzer 5000 and Intoxilyzer 8000 suffer from numerous problems. In some cases the instruments cannot even pass inspections of their most basic functions. As the machines age, they are sent out for repairs more often. Since the repairs are expensive, some law enforcement agencies attempt to cover up the problems which leads to machines giving inaccurate or unreliable readings.

An experienced criminal defense attorney can uncover those problems which often leads to a more favorable result during negotiations with the prosecutor or a better result at trial or during pre-trial motions to suppress or exclude the breath test reading.

Problems with Mouth Alcohol in Utah’s Intoxilyzer 5000 and Intoxilyzer 8000

The Intoxilyzer 5000 and Intoxilyzer 8000 instruments in Salt Lake City and throughout Utah also have serious problems telling the difference between alcohol found in the deep lungs (which can approximate the BAC in the blood) verses residual mouth alcohol which causes grossly inflated or “spiked” readings.

If you had any acid reflux or residual alcohol in your mouth or throat your breath test reading is completely unreliable. Dental work can also trap tiny amounts of alcohol hours after your last drink. These problems can cause an innocent person whose BAC was well below the legal limit to have a reading over .08.

Utah’s Intoxilyzer Problems Complicated by Fact Only One Reading is Taken

The problem is really complicated by the fact that in Utah, the officer will ask you to blow into the instrument one time. After the officer gets one valid reading, he will rarely ask you to submit to a second test.

In other states, the breath test operator is required to take two readings a few minutes apart. In those states, the breath test readings must be in .02 agreement or the instrument will require a third test. The first and second test are intended to confirm each other. If they do not agree, a third test can often uncover serious problems with the instrument that often goes unnoticed in Utah.

The fact that Utah only requires one reading on the Intoxilyzer 5000 or Intoxilyzer 8000 means that officials in this state will necessarily miss big problems with the accuracy and reliability of the instruments. Often the fact that these problems are difficult to detect will lead to an Intoxilyzer 5000 or Intoxilyzer 8000 taking hundreds of unreliable and inaccurate readings.

Utah’s DUI Statute

Utah’s DUI statute § 41-6a-502, proves for criminal penalties for driving under the influence of alcohol, drugs, or a combination of both or with specified or unsafe blood alcohol concentration. Under the statute a person may not operate or be in actual physical control of a vehicle within the state of Utah if the person:

  • (1) (a) has sufficient alcohol in the person’s body that a subsequent chemical test shows that the person has a blood or breath alcohol concentration of .08 grams or greater at the time of the test;
  • (1) (b) is under the influence of alcohol, any drug, or the combined influence of alcohol and any drug to a degree that renders the person incapable of safely operating a vehicle; or
  • (1) (c) has a blood or breath alcohol concentration of .08 grams or greater at the time of operation or actual physical control.

Definition of Breath or Blood Alcohol Concentration (BAC) under Utah Law

Utah law defines the Blood Alcohol Concentration (BAC) in terms of grams of alcohol per 100 milliliters of blood. Utah law defines the Breath Alcohol Concentration (called BAC or more specifically BrAC) in terms of grams of alcohol per 210 liters of breath.

Reports Concerning Driving Under the Influence of Prescribed Controlled Substances

Beginning on July 1, 2012, a courts in Utah are required to send a monthly report to the Division of Occupational and Professional Licensing, created in Utah Code Section 58-1-103, information about the case including the name, case number, and, if known, the date of birth of each person convicted during the preceding month of a violation of this section for whom there is evidence that the person was driving under the influence, in whole or in part, of a prescribed controlled substance.

Utah’s Implied Consent Statute

Under Utah’s implied consent statute, a person who operates a motor vehicle is presumed to have consented to a chemical test for purposes of determining whether that person had a Breath or Blood Alcohol Concentration (BAC) at or above the limits proscribed by Utah’s DUI statute. See id. § 41–6a–520(1)(a)–(c); State v. Sterger, 808 P.2d 122, 127 n. 6 (Utah Ct.App.1991).

BAC at the Time of Driving

One version of DUI in Utah focuses on BAC at the time of driving. See Utah Code Ann. § 41–6a–502(1)(c) (2010) which requires the prosecutor with the State of Utah to prove that a defendant “ha[d] a blood or breath alcohol concentration of .08 grams or greater at the time of operation or actual physical control ” of a vehicle.

BAC at Time of the Test

Alternatively, prosecutors with the State of Utah can charge the crime under subsection (1)(a) of the DUI statute which requires the State to prove that, as shown by a chemical test taken subsequent to the defendant’s operation or control of a vehicle, the defendant had a “blood or breath alcohol concentration of .08 grams or greater at the time of the test.” Utah Code Ann. § 41–6a–502(1)(a) (emphasis added).

Subsection (1)(a) does not require the State to establish that a person had a BAC of .08 or greater at the time he or she operated or controlled a vehicle. Thus, the Court’s have held that a a literal reading of the statute reveals that under subsection (1)(a), Defendant’s BAC at the time he operated or controlled a vehicle is irrelevant to whether Defendant had the requisite BAC at the time of the subsequent chemical test. See id.

Essentially, subsection (1)(a) of the DUI statute does not limit the amount of time that can pass between the person’s operation or control of a vehicle and the subsequent chemical test. The courts however, have determined that the alcohol that causes the .08 or greater BAC test result at the time of a subsequent test must be the same alcohol that was present in the person’s body while he or she was driving. Under this logic, any allegation that the person consumed alcohol after driving the vehicle but before submitting to the chemical testing may result in the suppression of the test result.

Finding an Aggressive and Experienced DUI Breath Test Attorney

If you were charged with DUI after submitting to a breath test on Utah’s Intoxilyzer 5000 or Intoxilyzer 8000, then contact an experienced DUI attorney in Salt Lake City, Utah. Darren Levitt represents clients charged with DUI after a breath test reading throughout Salt Lake City and Ogden, including Salt Lake County, Davis County, and Weber County, Utah.

Call Now To Schedule Your Consultation
(801) 828-2732