September 6, 2013 | Court Process
When you win a motion to say exclude a breath test that is good. However, the prosecutor has the ability to appeal the trial court’s decision to the court of appeals.
If the court of appeals disagrees with the trial court, they will reverse the holding. That means that the breath test can come back in as evidence against you at trial.
You have little choice, but to attempt to get rid of the test before trial. There are some theories that can be employed to attack the weight and credibility of the test to a judge or jury, but it is better if that evidence is not being used against you.
It can take months to years to get a decision in a case like this. I always advise that suspects in DUI and OVI cases do not take any blood, breath, or urine test until they can talk to a lawyer.
If you refuse the test, or your lawyer can convince a jury to return a not guilty verdict the prosecutor cannot usually appeal!
Now that’s the way to win.