Question: Can a breathalyzer be off by .01 in a California DUI?
Answer: Yes. It is possible for a Breathalizer to be off by .01 or more. That is part of the defense to DUI’s, and one of the many ways that I can get DUI charges dismissed and reduced.
That being said, I would need some clarification of your question. Are you wondering if a .08 breath test could be wrong and your BAC level .07 (or lower)? The answer to that is yes.
If your question is, can two breath tests have a .01 difference (ie. .11 and a .12) be admitted into evidence? If so, although there are many ways to challenge a breath test result and it’s lack of accuracy, a .01 difference between two results in and of itself will not keep that evidence out as title 17 of the California code of regulations allows for a .02 variance between the results. That being said, when the BAC results differ by more than a .02, then there is not title 17 compiance which can lead to that and other issues to support the results are unreliable and possibly keep them out of evidence.
What Court is your hearing in? Call me at (818) 336-1384 for a free consultation to discuss your case.
Regards, Philip Hache, DUI Defense Attorney