When police administer breathalyzer tests, they try to minimize the number of factors that may influence the result as much as possible, including asking defendants to remove tongue piercings. If you refuse or the officer forgets to ask you to take your piercing out, you may be able to use that to invalidate the results of the test. Here's more information about this DWI defense.
Prohibition Against Foreign Materials
As noted previously, there are a number of things that can influence the results of a breathalyzer test, including objects that may be in your mouth at the time of the analysis. For example, some breath fresheners that contain alcohol can inflate the reading, making your BAC level seem higher than it is.
Because of this, many states prohibit people from leaving things in their mouth while they're using a breathalyzer, and cops are supposed to check before administering the test. If the officer fails to do so and the defendant has an item in his or her mouths when the test is applied, the judge in the case may invalidate the results.
This happened in the case of a New Jersey woman who was able to get her breathalyzer test result thrown out because she didn't remove her tongue stud when she was tested. Both the defense attorney and the prosecutor referenced the state law prohibiting people from having foreign materials in their mouths as the reason the results should be accepted.
The Law May Not Help Much
Officers may or may not be able to compel defendants to remove oral jewelry prior to administering the breathalyzer test, depending on the laws of the state where the stop occurs. It's important to note, though, that attempting to invalidate a breathalyzer test by keeping your tongue piercing in your mouth or refusing to take it out when asked is not a sure strategy for avoiding being charged with a DUI.
First, the police may opt to test your BAC in other ways, such as taking you to the hospital for a blood analysis. Second, the prosecutor can use other evidence to establish that you were intoxicated, such as the officer's testimony about your behavior on and off the road and any statements you make at the scene.
Still, it can't hurt to discuss the issue with your DWI attorney. At the very least, your lawyer may be able to cut a deal with the prosecutor for reduced penalties if he or she is able to eliminate a major piece of evidence from the case. For more information about this issue or help with a DUI case, contact a criminal defense lawyer.