<P> The breath analyzer reading will be offered as evidence of that crime, although the issue is what the BrAC was at the time of driving rather than at the time of the test . Some jurisdictions, such as the State of Washington, now allow the use of breath analyzer test results without regard as to how much time passed between operation of the vehicle and the time the test was administered . The suspect will also be charged with driving under the influence of alcohol (sometimes referred to as driving or operating while intoxicated). While BrAC tests are not necessary to prove a defendant was under the influence, laws in most states require the jury to presume that he was under the influence if his BrAC is found and believed to be over 0.08 (grams of alcohol / 210 liters breath) when driving . In California, this is once again demonstrated by California Vehicle Code Section 23152 (b) and Cal - Crim 2111, which states: "If the People have proved beyond a reasonable doubt that a sample of the defendant's (blood / breath / urine) was taken within three hours of the defendant's (alleged) driving and that a chemical analysis of the sample showed a blood alcohol level of 0.08 percent or more, you may, but are not required to, conclude that the defendant's blood alcohol level was 0.08 percent or more at the time of the alleged offense ." This creates a rebuttable presumption, which means it is presumed, but that presumption can be rebutted if a jury finds it unreliable or if other evidence establishes a reasonable doubt as to whether the person actually drove with a breath or blood alcohol level of 0.08% or greater . This would not apply to States that have done away with the presumption, such as the State of Washington, as previously referenced . </P> <P> Infrared instruments are also known as "evidentiary breath testers" and generally produce court - admissible results . Other instruments, usually hand held in design, are known as "preliminary breath testers" (PBT), and their results, while valuable to an officer attempting to establish probable cause for a drunk driving arrest, are generally not admissible in court . Some states, such as Idaho, permit data or "readings" from hand - held PBTs to be presented as evidence in court . If at all, they are generally only admissible to show the presence of alcohol or as a pass - fail field sobriety test to help determine probable cause to arrest . South Dakota does not permit data from any type of breath tester, and relies entirely on blood tests to ensure accuracy . </P> <P> Historically, states initially tried to prohibit driving with a high level of BAC, and a BrAC test result was merely presented as indirect evidence of BAC . Where the defendant had refused to take a subsequent blood test, the only way the state could prove BAC was by presenting scientific evidence of how alcohol in the breath gets there from alcohol in the blood, along with evidence of how to convert from one to the other . DUI defense attorneys frequently contested the scientific reliability of such evidence . In response, many states like California subsequently modified their BAC statutes so to directly prohibit a certain level of alcohol in the breath as an alternative to a prohibited level of BAC . In other words, the breath test result itself, the BrAC level, became the direct predicate evidence for conviction . In other states, such as New Jersey, the statute remains tied to BAC, but the BrAC results of certain machines have been judicially deemed presumptively accurate substitutes for blood testing when used as directed . </P> <P> Police in Victoria, Australia, use breathalyzers that give a recognized 20% tolerance on readings . Noel Ashby, former Victoria Police Assistant Commissioner (Traffic & Transport), claims that this tolerance is to allow for different body types . </P>

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