How to Beat a Breathalyzer

First Five Things to Do

In PA, one little number holds the key to your future when it comes to DUI. It’s called your Blood Alcohol Concentration (or BAC) if the result comes from your blood. If it comes from your breath, scientists call it the BrAC. It is a scientific measurement. The BAC is the amount of alcohol the breathalyzer or blood testing equipment said was in your bloodstream at the time of your testing. It doesn’t measure your BAC at driving. The higher the number, the harsher the punishment you’ll face, if convicted. Most of the time, we find the BrAC is not scientific at all.

How to Beat a Breathalyzer

At first, your BAC may seem like an open-and-shut case. After all, numbers don’t lie, right? A breathalyzer is a breathalyzer, right? So how can you beat a DUI breathalyzer? With an experienced DUI lawyer from The McShane Firm, that’s how.

All of our attorneys are certified to own and operate the same roadside breathalyzers used by Pennsylvania state troopers. They all know how to spot equipment and operator flaws that can make your “magic number” inadmissible in court.


Recommended additional reading:

Equipment Errors

No machines is perfect. They break. They malfunction. Old. The equipment the police used to measure your breath or your blood at the time of your arrest is no exception. The police must keep total paperwork proof that these machines are constantly properly calibrated and adjusted to record incredibly small amounts of alcohol. The police must prove that they used the machines properly. One tiny mistake could affect your reading. Also, a false positive result (alcohol reading when there is no alcohol there) happens. See some of our below embedded videos.

When selecting which attorney to hire, please consider:

  • Can you call anytime and talk to a live person?
  • Do they offer payment plans with no credit checks?
  • Will your attorney be attentive and explain what’s going on?

At The McShane Firm, we answer yes to all of these questions. We strive to provide you with a great customer service experience during this tough time.

Why you can’t do it yourself

Would you be able to identify or prove if the roadside breathalyzer used in your DUI case was faulty? The highly-trained DUI lawyers of The McShane Firm can. Using the latest forensic science, we can challenge the results of your breath or blood test to provide you with the strongest DUI defense possible.

Procedural Errors

If the police officer who stopped you made any error in roadside procedure, the results of your DUI breathalyzer test might be inadmissible as evidence in court. These errors could be:

  • An invalid reason for your stop,
  • An observation period that was too short,
  • A failure to read you the proper warnings

Would you be able to tell if the trooper who pulled you over followed the correct roadside protocol? Our DUI lawyers here at The McShane Firm know – and even teach – the same NHTSA procedures required of all Pennsylvania State police officers. Who better to have in your corner defending your rights in the courtroom?

Don’t let one little number decide the fate of your license and your freedom. Contact us today and put the aggressive and knowledgeable DUI lawyers at The McShane Firm to work on your case. We might be able to make that “magic number” disappear

Motion Comes on the Heels of the Ruling in Commonwealth v Schildt

In a latest development, The McShane Firm has motioned to have breath testing banned in the state of Pennsylvania. This comes on the heels of the ruling of Dauphin County Judge Lawrence F. Clark in the case of Commonwealth v Schildt (complete ruling).

Attorney McShane filed a motion to dismiss all current Pennsylvania DUI cases involving breath testing.

Media Coverage of This Important Development


Report on ABC27

The Morning Call

Coverage on Pittsburgh Tribune-Review

Official Press Release by The McShane Firm

The Legal Intelligencer

phillyBurbs.con News Coverage

This step comes after testimony in a multi day hearing. Attorney McShane revealed that the manufacturer of the Intoxilyer 5000EN, CMI Inc. was not compliant with state regulations. In his ruling in Commonwealth v Schildt, Judge Lawrence F Clark, Jr. wrote,

“However, notwithstanding any such “verifying” undertakings performed by the manufacturer (CMI) on its own gas chromatograph, the bare FACT remains that the entity (CMI) that is performing the initial calibration of the breath testing device is using a simulator solution which was prepared (and allegedly subjected to some sort of a gas chromatographic analysis) by the same manufacturer and calibrator of that device. The regulatory requirement of a “gas chromatographic analysis by a laboratory independent of the manufacturer” has been blatantly ignored and obviously violated.”

This ruling showed how the BAC readings from the Intoxilyzer 5000EN breath machine are not reliable. Judge Lawrence F Clark, Jr. wrote in his opinion,

“As a result of the evidence produced at the hearing, it is now extremely questionable as to whether or not any DUI prosecution which utilizes a reading from an Intoxilyzer 5000EN breath testing device could presently withstand scrutiny based upon the startling testimony of the commonwealth’s own witness, Mr. Faulkner, at the hearing,” 


Ruling in Commonwealth v Schildt May Open the Doors for Breath Cases to be Challenged?

What is The McShane Difference?

  • We take time to understand your personal needs and goals. Then we cater our legal strategy to fit you.
  • We care about you. We listen and return phone calls. We will take time to explain things so you are not left anxious in the dark.
  • We will make this as easy as possible. We will try to minimize the number of times you have to be in court which means less disruption of your work and family life.

Does this sound like what you are looking for in an attorney? If yes, then take the next step and call (717) 657-3900.

Media Coverage of This Important Ruling

On December 31, 2012 Dauphin County Judge Lawrence F. Clark in the case of Commonwealth v Schildt ruled that the current calibration methods for Pennsylvania breath testing machines leave the devices inadequate to measure samples outside of the range of 0.05% to 0.15%. The ruling challenged thousands of the Highest BAC (over 0.16%) cases.

In his ruling, Judge Clark wrote,

“the utilization of any instrument reading above or below that range cannot, as a matter of science and therefore the law, satisfy the Commonwealth’s burden of proof beyond a reasonable doubt on an essential element of a charged offense for an alleged violation of 75 Pa.C.S.A. §3802(c) of the Pennsylvania Motor Vehicle Code.”

(View the complete ruling in Commonwealth v Schildt).

What McShane had to say

“Would you use a baby car seat with your child if it wasn’t proven to work correctly before you used it?

Of course not!

But that is exactly what the prosecutors are doing when it comes to evidentiary breath testing for DUI all across the Commonwealth of Pennsylvania.”

-Justin McShane

Our Clients are entitled to a Bill of Rights which states:

  • Our clients have the right to expect, we will be proactive in communication. You will hear it from us first. We will return all phone calls, texts and emails promptly.
  • Our clients have the right to expect plain speaking, straight shooting. No B. S.
  • Our clients have the right to expect us to do it right the first time, every time.
  • Our clients have the right to expect us to be on time and professionally prepared for all court appearances, and all meetings.
  • Our clients have the right to expect that they will be fully informed at all times.

This is our promise to you. Call today to get us on your side: (717) 657-3900.

What was the big deal…

Current regulations from the Department of Health and PennDOT require the police to calibrate yearly or more often depending on their performance. During the calibration process, the police only test solutions of 0.05%, 0.10% and 0.15%.

Attorney McShane argued that this method constituted a range of 0.05% to 0.15% that could be tested with scientific validity. However, samples outside of that range could not be scientifically proven. He presented comprehensive expert reports from, as the Court noted, “heavily-credentialed scientists.” These scientists supported the claim that tests that fall outside the range of 0.05% to 0.15% lack scientific backing. After reviewing the expert testimony and reports, the court ruled in favor of Attorney McShane’s client. Thus, the court called into question all breath testing. At that time, it involved thousands of cases across Pennsylvania.