If you challenge a Colorado DUI breath test, the result does not automatically disappear from your case. A breath-test challenge usually focuses on whether the evidential breath alcohol test, or EBAT, followed Colorado testing rules, whether the operator and instrument met certification requirements, whether the required 20-minute deprivation period was completed, whether the two breath samples agreed within the required range, and whether the quality-control checks met state standards.
A problem with the testing process can affect whether the result is admitted, how much weight a judge or jury gives it, plea discussions, trial strategy, and the separate Colorado DMV license proceeding. The outcome depends on the specific facts and records in your case.
The Law Firm of Mark S. Hanchey and Ben Peterson represents people facing DUI allegations in Colorado Springs, Colorado, and nearby areas. A breath-test review should look beyond the final BAC number. Your attorney can compare police video, machine records, operator information, timestamps, driving observations, reports, and other evidence to determine whether the result is supported by the full testing sequence.
What Does It Mean to Challenge a Colorado DUI Breath Test?
Challenging a breath test does not mean arguing that every breath test is unreliable. Colorado uses detailed rules for evidential breath alcohol testing. A focused challenge identifies a specific procedural, technical, or evidentiary issue that may affect the result.
Your attorney may examine questions involving:
- The certification status of the operator
- The approval status of the testing facility
- The certification history of the EBAT instrument
- The 20-minute deprivation period
- Exception messages or invalid samples
- The agreement between the two breath samples
- Calibration and reference-standard checks
- The time between driving and testing
- Police video and written reports
- Evidence that may support or conflict with the measured BAC
For a broader explanation of DUI and DWAI allegations in Colorado, see:
https://hancheylaw.com/understanding-colorado-dui-laws-what-you-need-to-know/
Colorado EBAT rules are published by the Colorado Department of Public Health and Environment:
https://www.sos.state.co.us/CCR/GenerateRulePdf.do?fileName=5+CCR+1005-2&ruleVersionId=7962
Colorado law provides that you commit DUI per se if your BAC is 0.08 or more at the time of driving or within two hours after driving. Colorado law also allows a defendant to present evidence that a breath or blood test was defective or inaccurate. A reported BAC is evidence, but the number can still be examined in light of the testing procedure and the other facts in the case.
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The 20-Minute Deprivation Period Is Often Reviewed First
Colorado EBAT rules require a 20-minute deprivation period at an approved EBAT facility. An active, certified EBAT instructor or operator must conduct the period before testing.
Before the period begins, nonpermanent foreign material must be removed from your mouth. During the deprivation period, you must be denied access to material that could be introduced into your mouth. The operator must also observe you for signs of belching, regurgitation, or intake of foreign material. If one of those events is observed, the 20-minute deprivation period must be repeated before testing.
That creates several factual questions that your attorney can investigate:
- When did the 20-minute period actually begin?
- Did the operator observe you as required?
- Does body-camera or station video match the recorded start time?
- Did you belch, regurgitate, eat, drink, smoke, or place foreign material in your mouth?
- If an event occurred, was the 20-minute period restarted?
- Did the operator continue observing you through completion of the second breath sample?
A discrepancy does not automatically remove the result from evidence. Colorado case law recognizes that a testing-rule violation does not always require exclusion when the test is still shown to be scientifically valid and reliable. The nature of the deviation and its effect on reliability can become central issues in the case.
A testing-rule problem does not automatically erase a breath result. The question is whether the issue affects admissibility, reliability, or the weight the result receives.
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Two Breath Samples Must Meet Colorado's Correlation Requirement
Colorado EBAT rules require two subject breath samples. The two results must agree with each other within 0.020 grams of alcohol per 210 liters of breath.
If the samples do not meet that requirement, the instrument must discontinue the test sequence and produce a "No .02 Agreement" exception message. Before you are retested, the certified operator or instructor must repeat the 20-minute deprivation period.
The rules also address invalid samples. If the instrument reports an "Invalid Sample" exception message, another 20-minute deprivation period is required before retesting.
Your attorney may request and compare:
- The complete test sequence
- Exception messages
- Retest records
- Checklists
- Machine printouts
- Body-camera or station video
- Recorded deprivation-period start times
These records can show what happened during the test and whether the required response followed an exception message.
The EBAT Instrument and Quality-Control Checks Matter
Colorado requires evidential breath tests to be performed on a certified EBAT instrument approved by the state. The instrument must be certified initially and annually after that.
Each EBAT sequence must include an assayed reference standard with a known ethanol concentration of 0.100 grams of alcohol per 210 liters of breath. The permitted range is 0.090 to 0.110 grams per 210 liters of breath. The calibration checks must meet the required correlation. If they do not, the instrument must discontinue the sequence and issue a "No Calibration Correlation" exception message.
These requirements matter because the final BAC number comes from a regulated testing process. A defense review can compare the result with records showing:
- Whether the instrument was within its certification period
- Whether the reference-standard checks fell within the required range
- Whether the calibration checks correlated as required
- Whether the machine produced exception messages
- Whether the operator followed the required retesting procedure
Operator Certification and Testing Location Can Be Examined
Colorado requires an active, certified EBAT operator or instructor to administer the evidential breath test. The test must also occur at an approved EBAT facility with a certified instrument.
A review can include the operator's certification status, the facility information, the instrument serial number, and the records connected with your test. If the paperwork and video do not match, or if certification dates raise a factual issue, your attorney can examine whether the discrepancy affects the breath-test evidence.
For information about DUI representation in Colorado Springs, visit:
https://hancheylaw.com/colorado-springs-dui-lawyers/
What Evidence Can Be Used to Challenge a Breath-Test Result?
The final breath-test report is only one part of the evidence. Your attorney may seek records that allow the testing sequence to be reconstructed from start to finish.
Those records may include:
- The complete EBAT test record
- Instrument certification records
- Operator certification information
- Calibration and reference-standard data
- Exception and error messages
- EBAT checklists and printouts
- Body-camera, dash-camera, or station video
- Police reports and arrest paperwork
- Dispatch and booking timestamps
- Records showing where and when the test occurred
- Evidence of medical or physical conditions that may be relevant to testing
- Statements made by you or officers during the testing process
- Evidence concerning the time between driving and testing
The goal is to compare the machine records, video, timestamps, and officer account so that any meaningful inconsistency can be identified.
What Happens in Court After the Breath Test Is Challenged?
What happens next depends on the issue that your attorney identifies.
Some problems may support a motion addressing whether the breath result should be admitted. Other problems may become part of cross-examination or an argument that the result should receive less weight.
Colorado courts do not treat every testing-rule violation as an automatic basis for exclusion. A court may consider whether the test remained scientifically valid and reliable, whether the instrument was working properly, and whether the test was administered by a qualified person.
If the judge admits the result, you may still be able to present evidence about deviations from the testing procedure and argue that those issues affect the weight of the BAC evidence.
A successful breath-test challenge does not automatically end a DUI case. Prosecutors may still rely on evidence such as:
- Driving behavior
- Officer observations
- Field sobriety exercises
- Statements
- Body-camera or dash-camera video
- Other physical or documentary evidence
That is why your defense should review the breath result as one part of the entire case rather than treating one testing issue as an automatic dismissal.
For information about criminal defense representation in Colorado Springs and nearby areas, visit:
https://hancheylaw.com/colorado-springs-criminal-defense-lawyers/
The Colorado DMV Case Is Separate From the Criminal DUI Case
A Colorado DUI arrest can also trigger an administrative driver's license proceeding. The DMV case is separate from the criminal prosecution.
If you received an Express Consent Affidavit and Notice of Revocation after a breath test or refusal, Colorado Department of Revenue materials state that you have up to seven days to request an Express Consent hearing. If you do not request a hearing within the required period, the revocation process can continue without the requested hearing.
At the DMV hearing, the hearing officer can consider the breath result and related evidence. The administrative proceeding uses its own issues, procedures, and standard of proof. The result of the DMV case does not automatically decide the criminal DUI case.
Because the hearing-request period is short, review the paperwork you received after the arrest as soon as possible.
Colorado Department of Revenue Express Consent information:
https://cdor.colorado.gov/express-consent-cases-procedures
For information about traffic-related representation, visit:
https://hancheylaw.com/colorado-springs-traffic-violation-lawyers/
What Should You Do If You Question Your Breath-Test Result?
Keep every document you received from law enforcement and the Colorado DMV. Write down what you remember about the testing sequence while the details remain clear.
Useful details can include:
- Where the breath test occurred
- When the deprivation period appeared to begin
- How long you waited before providing the first sample
- What the operator told you
- Whether you coughed, belched, or regurgitated
- Whether you ate, drank, smoked, or had anything in your mouth
- Whether the machine displayed an error or required another test
- Whether you were moved away from the instrument between samples
- Anything unusual that happened before or between samples
Do not assume that a surprising BAC number proves the instrument was wrong. The stronger question is whether the available records reveal a specific procedural, technical, or evidentiary issue that can be investigated.
An attorney can request records, compare timestamps, review video, examine Colorado EBAT requirements, and determine how the issue may affect the criminal case, DMV proceeding, or negotiations.
Speak With a Colorado Springs DUI Attorney
If you are facing a DUI allegation in Colorado Springs, Colorado, or a nearby area and you have questions about an evidential breath test, the Law Firm of Mark S. Hanchey and Ben Peterson can review the testing procedure and the surrounding evidence.
Call 719-212-9055 or visit:
https://hancheylaw.com/contact/
The firm handles DUI and criminal defense matters in Colorado Springs and can evaluate the breath-test records in the context of the rest of your case.
This article is for informational purposes only and is not legal advice. Consult an attorney about your specific situation.
