How to Beat a Breath Alcohol Test in Minnesota

Many people see our breath test victories and ask us, “How do you beat a breath test?” 

Unfortunately, there’s no simple answer. Each case is different, and nothing is better than decades of training, education, and experience. So we’ll start with some tips for drivers who have been drinking and are stopped by police. 

I always tell my clients not to answer any questions in a DWI investigation unless their lawyer is present. Be polite, but don’t provide evidence against yourself. Don’t lie, but you are not required to answer. We suggest you answer with, “My attorney told me not to discuss my day.” 

Most officers make up their minds to arrest a person long before actually slapping on the cuffs. If they ask you to step from your vehicle “just to make sure you’re safe to drive,” they intend to arrest you eventually.  At this point, they’re just looking for more evidence to pile on. Politely tell them, “My attorney told me not to do any exercises.” They will try to talk you into doing them. Be firm. Don’t do field sobriety tests!

If the officer arrests you and reads you a document telling you that you are required to take a breath test, you are required to take the breath test. Refusal is a crime, and they will take your license if you refuse. But before you tell the officer you will take the test, they will offer you a chance to speak with a lawyer.  Do it! Call us or another lawyer. Not only may the passage of time cause the alcohol concentration to drop, but the officer may make some mistakes we can use in your defense.  

We’ve taught lawyers who get the “midnight call” to advise those arrested for suspicion of drunk driving of the following: 

1. Demand an independent alcohol test (“I want an independent test”); 
2. Insist you will not answer any questions without your lawyer present (“I will not answer any questions without my lawyer present”); and, 
3. To take the breath test (“I will take the breath test”). 

I mentioned earlier that you should not give the government any evidence to use against you. We have the same view when it comes to giving a breath test: Don’t give out more information than you need to. The state will only use the additional evidence against you. 

So once the breath test starts and the officer is demanding that you “keep blowing, keep blowing, keep blowing…” into the breath alcohol machine, it’s because he or she wants to get the highest number to justify the arrest. It’s part of their job. 

But it’s my job to tell you how the machine works and why you shouldn’t just “blow until you run out of breath.”

THE LONGER YOU BLOW, THE HIGHER YOU GO

You see, the longer you blow into the machine, the higher the breath alcohol goes. The longer you blow, the more evidence you are giving the state to incriminate yourself with.

But the 5th Amendment to the Constitution says that no person should be compelled to give witness against themselves.

I’m NOT telling you to refuse to blow into the machine. That’s a crime.

But here’s what I AM SAYING: don’t give them more breath than you need to. Here’s why:

The minimum volume for the DMT breath test machine in Minnesota is 1.5 liters. You also need to meet a “level” slope requirement (it’s not level at all, but “kinda starting to be”). But in my experience in looking at thousands of breath tests, most people meet the slope requirement by the time they get to 1.5 liters.

So give them 1.5 liters of breath, but not more. 

At the bottom right of the DMT screen, there is a bar graph. Once you’ve filled the bar graph halfway, you’ve met the minimum volume requirement, and the machine will likely accept your sample (as long as you’ve also met the minimum slope). 

You’ve got 3 minutes per breath to give a sufficient sample. Try giving just the minimum volume. If the machine doesn’t accept your sample, go a little further than the 1.5-liter minimum until the machine accepts your sample. If the machine says you have not provided enough air, keep trying – blowing longer than the previous attempt.

NOTE: IF YOU FAIL TO PROVIDE A SUFFICIENT AMOUNT OF AIR IN 3 MINUTES, THAT IS CONSIDERED A TEST REFUSAL. THIS CAN BE MORE SERIOUS THAN JUST TAKING AND FAILING THE TEST. So don’t mess around too much.

TL;DR

If this seems too complicated, here’s what you need to know: 

1.  Don’t answer any questions (“My lawyer told me not to discuss my day”); 
2. Don’t do any field sobriety tests; 
3.  Speak to a lawyer before taking a breath test; and 
4. Don’t blow more breath than necessary into the breath machine. 

On your first blow, try stopping as the green bar graph in the bottom right fills to the halfway point. 

If the machine doesn’t accept your sample, blow a little bit farther on the green bar graph until the machine accepts your breath. This will make sure you don’t give the state more evidence than they absolutely need. Make sure you provide a sufficient amount of air within the three-minute period, or you may be in worse trouble!

CALL RAMSAY LAW

If you’ve been accused of a DWI, you need a firm that understands the science and the law. At Ramsay Law, we have the only board-certified DWI defense in the state (recognized by the American Bar Association, not the MSBA). 

We look at all the breath machine data to ensure you get the best defense possible.

Call 651-604-0000 to talk with us today.