Breath Tests

Breath Testing in a Fullerton DUI Case:

There are many problems with the way breath testing devices used in DUI cases.  These breath tests can be very unreliable and susceptible to attack by an Fullerton DUI Attorney who understands the weakness of a these  "breathalyzer" machines.  DUI defense lawyers are often asked why they are taking a particular drunk driving case to trial, when a breath machine has obviously produced a reading above the legal limit. What these lawyers know, and what they hope to educate their juries about, is that the breath testing machines that are used in DUI cases are severely subject to errors even in the best of circumstances. Breath testing in DUI cases is far from perfect. Breath testing in DUI cases dates back to 1937, when Rolla Harger invented the "Drunkometer". This machine gave birth to an industry that has witnessed many new designs, each trying to improve on the reliability of its predecessor. However, even in our present era, every single breath-testing device is subject to mistakes. All breath-testing machines used in DUI cases make certain assumptions about the people being tested that may or may not be true. All of the drunk driving breath testing machines are subject to human error, maintenance problems, interference from outside sources such as radio frequency interference “RFI,” and internal malfunctions

In all DUI cases, the prosecution must prove that the defendant's blood alcohol concentration at the time of the offense (Driving) was at or above a statutory limit. In California, the limit is .08. Thus, in order to prove the requisite level of alcohol in the blood of someone arrested for a DUI, it is necessary to obtain a suitable sample of the arrestee's blood or breath at the time of arrest. The use of a breath test is by far the most popular scientific method for establishing that drunk driving has occurred. Some defendants have been able to challenge the results of such tests in court successfully, thereby preventing a conviction. An Fullerton DUI attorney experienced in drunk driving defense law is in a strong position to advise a client whether the "Breathalyzer" test results may be subject to challenge in his or her particular case.

Breath tests in DUI cases have traditionally been used as evidence in drunk driving cases because they are much more reliable than police testimony. However, breath tests only estimate blood alcohol concentration (BAC), they don’t measure it.  DUI breath testing is an indirect way of determining blood alcohol content (BAC) or blood alcohol level (BAL).  It is simply an estimate based on a complex equation called a “Partition ratio.”  A breath test measures only alcohol and is more error prone. Equations are used to gauge the relative amount of alcohol contained in a sample of deep lung (alveolar) air and law enforcement then has to calculate the amount of blood alcohol that should be present. Testing alveolar air has its problems, in that the sample does not necessarily remain constant. Temperature and breath patterns also affect the content of any given breath sample The root cause for inaccuracies in blood-alcohol testing is the mistaken belief that the people being tested all have “average” physiological attributes. In other words, the accuracy of every blood-alcohol test result is contingent upon the validity of a set of specific assumptions. To the detriment of the individual being tested, the assumptions are hardly ever correct. The likelihood that the individual being tested has “average” attributes is extremely low.  For example, all breath testing machines assume that the proportion between alcohol in the breath and alcohol in the blood is 1: 2100. The BAC machine is configured to base its reading entirely on this assumption. In actuality, these proportions in an individual can differ from anywhere between 1:1300 to 1:3000 or more. Doing the math, a person who had a 1:1700 breath-to-blood ratio and a genuine blood-alcohol level of .08% would actually get a reading of .10%. This would be an “accurate” reading from a breath testing machine that compared the results with the “normal” ratio. The validity of the readings corresponds directly to the validity of the original assumption. In reality, these machines repeatedly assess an average person, only using a defendant’s breath sample. There is no regard to the defendant’s physiological individuality.

There are several breath testing devices in the market used in California DUIs. They are manufactured by private companies and sold to law enforcement agencies. These varying devices come with unique characteristics and requirements for proper use and care. The improper use, testing and/or maintenance of these various devices can play a significant role in your defense. It follows that it is vitally important to select an attorney for your drunk driving case with expert knowledge of these machines.

The Preliminary Alcohol Screening (PAS) device is used in most Orange County DUI cases:  During breath testing, the first breath test given is usually at the side of the road after the field sobriety tests (FST’s) have been given.  The name of the devise used in most Orange County DUIs is the Alco Sensor IV. The test is commonly referred to as a preliminary alcohol screening test or “PAS” test or preliminary breath test “PBT.”  Of all the breath tests, the PAS test is the most unreliable because the Alco Sensor IV does not have various error checking safeguards to protect against the contaminating influences of alcohol that often times remains in a person’s mouth after drinking which is usually referred to as “mouth alcohol.”  If the devise measures alcohol that is in the mouth, this could contaminate the result and give a false high result that could cause a person to be charged with a DUI.  The Alco Sensor IV operates by using a “fuel cell.”  The fuel cell generates energy as alcohol molecules pass over it.  Another problem is that the fuel cell is not ethanol, which is the alcohol in alcoholic beverages, specific. What this means is that the fuel cell can identify other things as alcohol such as bread residue and other molecules that have chemical structures similar to alcohol. There are thousands of such substances present in most person’s bodies.  Lastly, fuel cells degrade over time and when this happens, they are more prone to producing contaminated results. It is possible to wash your mouth with mouthwash and then blow into an Alco Sensor IV and record a .40 BAC reading.  Most law enforcement agencies do not rely on the results of the Alco Sensor IV for prosecution because the fuel cell technology is too faulty. Orange County, however, still does! Fullerton DUI attorney Randall T. Longwith has been certified as an administrator of the Alco Sensor IV by the Police Academy. If your DUI involved a road side breath, call Mr. Longwith today for a FREE CASE EVALUATION. (714) 699-4384.

Another defect in these “breathalyzer” type machines used in Fulleton DUI investigations is that many fail to identify ethanol which is the particular type of alcohol in alcoholic beverages to the exclusion of all other chemical compounds. To use the terminology of scientists, such methods are not specific for ethyl alcohol: They will detect other compounds which are naturally occurring in the human body and report them as “alcohol!!”  Thus a client with other compounds in his blood or breath could have no alcohol in his body yet still obtain a high blood alcohol reading on one of these breath reading gizmos. This problem is most noticeable in the use of infrared breath devices, such as the Alco Sensor IV, which are the most common type used in DUI cases. The technical reason these fuel cell machines make these errors is because they are not designed to detect the molecule of ethyl alcohol (ethanol), but rather only a part of that molecule — the methyl group. In other words, it is the methyl group in the ethyl alcohol compound that is absorbing the infrared light, resulting in the eventual blood-alcohol reading. Thus the machine will "detect" any chemical compound and identify it as ethyl alcohol if it contains a methyl group compound within its molecular structure. The "Breathalyzer" assumes that the methyl group is a part of an ethyl alcohol compound. The simple fact is that there are thousands of compounds that contain the methyl group. 

Acetone and acetaldehyde, for example, can be found on the human breath. In fact, recent studies have found that over one hundred chemical compounds can be found on the breath at any given moment in time. More important, approximately 70 to 80 percent of these compounds contain methyl groups. And the infrared breath machine will detect each of these as "ethyl alcohol". How prevalent are chemicals in the breath that can register on breath analyzing machines? Here are some common things that can give falsely high readings: Untreated Diabetics; Persons on a Weight Reduction Diet; Fasting: People on Atkins type diets; Long-term smokers are more likely to have higher blood-alcohol readings due to a greater amount of acetaldehyde in the lungs; Alcoholics can have 5 to 55 times higher levels of acetaldehyde in there breath or blood than that in nonalcoholics; Inhaling Paint and Glue Fumes; Inhaling Lacquer Fumes; Swallowing Unleaded Gasoline and; Bread Products of various types. If your DUI involved a road side breath, call Fullerton DUI attorney Randall Longwith today for a FREE CASE EVALUATION. (714) 699-4384.

The technology used in the stationhouse breath testing devices is slightly more reliable than the fuel cell type machines such as the Alco Sensor IV in that they do typically have slope detectors to guard against mouth alcohol contamination and they try and guard against the NON SPECIFICITY problem by using a technology referred to as Infrared spectrometry instead of fuel cells. This technology uses a quartz lamp inside the machine radiates infrared energy through the sample. The amount of energy that makes it through the sample (i.e., not absorbed by alcohol) is then measured. The greater the amount of alcohol present in the sample, the greater the absorption. Even these more stationhouse type breathalyzers like the Intoxilyzer and Datamaster can have problems if the breath device itself has not been properly maintained or operated. Even when these advanced devises are functioning properly, they have a modest but inherent margin of error that can affect the outcome of your drunk driving case.

Just as in Blood tests, Breath testing in DUI cases are always taken some time after the driving. Blood alcohol level often rises over time.  What can this mean in your DUI case?  What it means is even if the results in your DUI breath test accurately reflects the true alcohol content of your blood, your case can still be successfully defended. This is because all the test result can say is that your blood contained a certain alcohol content at the time the breath test was given.  It doesn’t, however, say what your blood alcohol content was at the time of driving.  The two can and often are very different.  Remember it is not against the law to have a BAC of .08% or above at the time your breath test was given. It is only against the law to have a BAC of .08% or above at the time you were actually driving. Because blood alcohol levels change over time, this is a critical point to understand.  The prosecutor has to use a bunch of assumptions and circumstantial evidence to “guess-timate” backwards to what he thinks your true BAC was at the time of driving.   An expert Fullerton DUI attorney such as Randall T. Longwith can effectively challenge these assumptions and give you the best change at a successful outcome in your DUI case. 

Ultimately, breath test results in your DUI can be successfully challenged. When it comes to issues of breath testing in an Orange County drinking and driving case, it’s important to have an experienced Fullerton DUI lawyer with proven results on your side. Contact Fullerton DUI Defense Attorney Randall T. Longwith today for a FREE CONSULTATION at (714)-699-4384

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