DUI and breathalizer?

My wife got pulled over for a speeding ticket. She also got a DUI. but the officer could not get a breathalizer reading. She says she could not blow hard enough. Do we have a leg to stand on to overturn the DUI?

Asked on May 26, 2009 under Criminal Law, Kansas


B. B., Member, New Jersey Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

I would need to know all of the facts of your wife's case, before I could tell you if this is worth fighting.  I'm not a Kansas attorney, but my research indicates that, like most states, Kansas law defines DUI both with a breathalyzer reading and "the old fashioned way," being under the influence "to a degree that renders the person incapable of safely driving a vehicle." Kansas Statutes 8-1567(a)(3).

Evidence, in a case like this, might include the police officer's testimony that your wife wasn't driving in a straight line, that there was a smell of alcohol from her breath or her body, that she was slurring her words, or that she failed the physical sobriety test he might have run, asking her to recite the alphabet backwards or walking heel-to-toe -- or more than one of these.

DUI is a serious offense, and you should talk to an attorney in your area, and review all of the facts of your wife's case, to get sound advice, and having a lawyer with you even to plead guilty is sometimes a good idea.  One place to find qualified counsel is our website, http://attorneypages.com

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