Who Can Legally Give Breathalyzer Tests?
Law enforcement agents and other officials must have a way to quickly assess a person's intoxication level. Using a breathalyzer allows both consumers and authority figures an inexpensive method to measure blood alcohol content and decide when it exceeds safe levels. However, this technology raises complex legal questions related to self-incrimination and illegal searches. Numerous court cases set the precedent for the legal use of breathalyzers by police and school officials.
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Consumer Devices
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Any consumer may buy a handheld breathalyzer for private use. A consumer breathalyzer is certified as safe by the Food and Drug Administration, and will provide a reasonably accurate blood alcohol reading. Most consumer devices, however, are not as accurate as police breathalyzers, and may produce inaccurate or inconsistent readings. To obtain the most reliable reading from a breathalyzer, wait a few minutes after drinking and rinse your mouth before breathing into the machine. Repeat at least once to verify the reading.
Law Enforcement
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When a police officer suspects a driver is drunk, he may request a breathalyzer test. Before an officer pulls over a driver, he must observe behavior, such as weaving or traffic violations, that leads him to reasonably suspect drunkenness. In most states, any licensed motorist gives "implied consent" to testing when he decides to operate a motor vehicle. This waives any rights the driver has to object to the test as an illegal search or invasion of privacy. As a result, law enforcement may legally request a breathalyzer test, and enforce fines or punishments if you refuse. Breathalyzer results are not considered a protected form of self-incrimination under the Fifth Amendment. Some areas may allow drivers to opt out of a breathalyzer or other in-field sobriety test in favor of a more accurate, but time-consuming blood test.
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Schools
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In recent years, both private and public schools have begun using breathalyzers to test for student sobriety. The practice is especially common at school events, such as proms, where intoxication is often a concern. As with police use, the law has upheld the school's power to require drug tests of students, with or without probable cause. A breathalyzer is not considered a search.
Employers
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Employers may legally demand chemical tests for drug usage before hiring, or during your tenure as an employee. Most states allow random, or "cause-less" drug tests, but some areas have restrictions that protect employees' privacy by requiring reasonable suspicion before testing. Drug tests may include a breathalyzer, although commonly employers will use more accurate blood or urine tests for alcohol. If the results of a breathalyzer test are in conflict with company policy on alcohol use, an employer may legally terminate a worker. An employee may challenge drug testing in court if the testing is excessive, discriminatory or used as harassment.
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