Why the Breath Test May Be on Your Side — and How a Private Attorney Can Help You Fight Back

This is a question I hear more often than you might think, and it usually comes from someone who thought they did the right thing. You cooperated with the officer, did the tests they asked you to do, and even blew under the legal limit. But now you're holding a DUI charge and wondering, "How is this possible?"

Can I Fight a DUI Charge If I Fail the Field Sobriety Tests but Pass the Breath Test?

Let me be clear — yes, you can fight a DUI charge in this situation. Failing field sobriety tests doesn't mean you're guilty. And passing a breath test might actually work in your favor. However, the key is to have the right legal approach from the very beginning. I've defended clients in this exact position, and the earlier I get involved, the more I can do to challenge the evidence and protect your future.

Why You Were Arrested Even After Passing the Breath Test

People assume the breath test is the most important piece of evidence in a DUI case — and in many situations, it is. However, officers also rely heavily on what they observe before the arrest. That includes how you acted during the stop, how you spoke, how you moved, and how you performed during the field sobriety tests.

If they believe those tests showed signs of impairment, they might still arrest you — even if the breath test came back below the legal limit. They'll say you were under the influence of something other than alcohol. Or they'll claim that your driving behavior and physical signs gave them enough reason to move forward with the arrest.

I've seen this happen plenty of times. The good news is there are ways to challenge these assumptions. And that's exactly what I do when I take on a case like this.

Field Sobriety Tests Are Highly Subjective

Let's talk about the tests themselves. These are the same ones used nationwide: the walk-and-turn, the one-leg stand, and the horizontal gaze nystagmus (the eye test). Officers are trained to look for certain clues that might indicate impairment — like stepping off the line, swaying, or not following instructions exactly.

The problem is that these observations are made by the same person who already suspects you're impaired. That bias can shape how they score the tests. And a lot of factors can affect your performance that have nothing to do with drugs or alcohol. I've seen people stumble because of old injuries, fatigue, nervousness, or even poor shoes — not because they were under the influence.

When I defend a case like this, I go straight to the bodycam or dashcam footage. I compare the officer's written report to what the video actually shows. I look for inconsistencies, missing instructions, or anything else that weakens the claim that you failed the test.

The Breath Test Result Can Be a Key Defense

If your breath test result came back below the legal limit — or even at zero — that's a big deal. It can help show the court that alcohol was not a factor in your case. And if alcohol wasn't present, we need to look at whether the officer had any real reason to think you were under the influence of something else.

Some officers try to switch gears after a low breath result, saying they now suspect drug impairment. That's a big leap — and one that requires more proof than just poor performance on a few roadside tests. Unless they performed a proper drug recognition evaluation or had you submit to a blood or urine test, the claim may not hold up.

I've successfully argued that without clear evidence of drug use, a low breath result combined with weak field sobriety observations is not enough to support a DUI charge. But I have to build that argument early — which is why hiring a private attorney as soon as possible is so important.

Officers Don't Always Follow the Rules

I review every DUI stop for legal problems. Did the officer have a valid reason to pull you over? Did they explain your rights properly? Did they give you clear instructions before the field sobriety tests? Did they tell you the tests were voluntary?

These questions matter because mistakes in these areas can impact the entire case. If the officer didn't follow protocol, we may be able to challenge the arrest itself — and potentially have the charges reduced or dismissed.

A private attorney has the time and focus to investigate these details. I don't rely on what the officer wrote. I verify everything, starting with the raw footage and working my way through the entire timeline. These are the steps that can make the difference between a conviction and a clean record.

How I Build a Defense Around Your Low Breath Test

When someone hires me after passing the breath test but still being charged with DUI, my defense starts with two main goals: challenging the field sobriety evidence and reinforcing the accuracy of the breath result. That means:

  • Getting the video and audio recordings
  • Reviewing the officer's training and how the tests were given
  • Exploring any health or medical conditions that could explain your performance
  • Checking for alternative explanations, like fatigue or anxiety
  • Looking into whether any blood or urine tests were requested — and if they were done properly

If the prosecutor's entire case rests on the officer's opinion during the field tests, and we have a low breath test to work with, that opens the door to raising reasonable doubt. And reasonable doubt is enough to win.

Why Hiring a Private Attorney Early Is Critical

Time matters in a DUI case. Video evidence can be erased. Witnesses may forget details. Deadlines to challenge your license suspension can pass quickly. The earlier I get involved, the sooner I can start preserving evidence, preparing your defense, and advising you on the right steps.

Public defenders often do good work, but they're not always able to give your case the attention it needs. I make it my job to treat every case like it's the most important one I have — because to you, it is.

Your record, your license, your job — they're all on the line. And just because you failed a few roadside tests doesn't mean your case is over especially when the breath test result is in your favor.

DUI Breath Test Frequently Asked Questions

Can I really be charged with DUI if I passed the breath test?

Yes. Officers can still charge you if they believe you're impaired by drugs or even if they think your behavior matches signs of alcohol impairment despite the breath test. But those charges are often easier to challenge if no other solid evidence exists.

Why would I fail a field sobriety test if I wasn't drunk?

There are plenty of reasons. You might be tired, nervous, dealing with a medical condition, wearing uncomfortable shoes, or standing on uneven pavement. Field sobriety tests are very sensitive to small mistakes — and officers don't always take those factors into account.

Does a low breath test help my case?

Absolutely. A low or zero result challenges the idea that you were under the influence of alcohol. If there's no other valid evidence of drug impairment, a low breath test can work in your favor.

Can the officer say I was impaired by drugs even if no drug test was done?

They can make that claim, but without solid proof — like a blood or urine test — it's very difficult to prove in court. Field sobriety tests alone are not reliable enough to show drug impairment.

What if the officer claimed I failed all the field sobriety tests?

Even if they wrote that in the report, that doesn't mean it's accurate. I always compare the report to the video. Officers sometimes exaggerate, and video evidence can show a very different version of what happened.

Can a private attorney help even if the officer says I was impaired?

Yes. A private attorney can break down every part of the stop and the tests, look for mistakes, and challenge the officer's opinion. Just because they wrote you were impaired doesn't mean the court has to believe it.

Do I have to go to court if I hire a private lawyer?

In some cases, your attorney can appear on your behalf, especially for early hearings. Every case is different, but part of my job is to make the process as smooth as possible and keep you informed every step of the way.

How long do I have to act after being charged?

Some deadlines come up quickly, especially for license hearings or evidence requests. That's why it's so important to speak with a private attorney right away. The longer you wait, the fewer options we may have.

Contact Musca Law 24/7/365 at 1-888-484-5057 For Your FREE Consultation

Musca Law, P.A. has a team of experienced criminal defense attorneys dedicated to defending people charged with a criminal or traffic offense. We are available 24/7/365 at 1-888-484-5057 for your FREE consultation.