June 20, 2007

To Blow or not to blow part 2

This blog entry will briefly discuss how the magic breath machines work and how they spit out that little piece of paper which effects the rest of your life. The following blogs in this multi part series will discuss the particular shortcomings of the EC/IR machine.

A breathalyzer machine is a general term for a machine which tests the amount of alcohol in your breath; they were first developed in the 1940's for use by the police. In 1954 Dr. Robert Borkenstein of the Indiana State Police invented a machine known as the breathalyzer.

Maryland is presently utilizing a machine known as the EC/IR machine for its DUI and alcohol detection. There are other machines such as Alcotest and DataMaster. These large machines that sit in the police station should not be confused with the PBT or Preliminary Breath Test handheld devices that the officers carry on the street. The PBT device can not be used as evidence against you in court but rather is used to guide the police is making an arrest.

Getting back to the intox machine, in Maryland we use the EC/IR. The EC is the fuel cell or electrochemical sensor and the IR stands for infrared spectroscopy. The machine utilizes both methods in an alleged attempt to be accurate Admittedly, the fuel cell sensor is specific to alcohol, while the IR sensor can be effected by many common breath constituents. The IR uses infrared spectroscopy to identify certain molecules by the way the molecules absorb infrared light, it measures the molecules in near real time in order to determine the best breath sample to evaluate. Molecules constantly vibrate and the vibration changes when the molecule absorbs light. The changes in vibration are the result of bending and stretching of the molecular bonds. Importantly, each time a molecule absorbs IR at different wavelengths, this is what the intox machines are able to measure.

That is, in order to identify the presence and amount of alcohol in the system, the intox machine endeavors to identify the ethanol molecule in a sample of breath. The machine calculates the absorption of the IR light as it passes through the sample breath provided (the the breath chamber of the machine) and based on the amount of light absorbed by the sample, the machine can determine the presence of ethanol alcohol and the amount. The absorbed wavelengths identify the substance, and the amount of IR absorption tells how much alcohol is present.

To put it another way, the machine has a light which it projects through an air sample chamber. Based on a clear breath sample chamber, the machine expects a given amount of light to register at the other end as it passes through special filters designed to look for the ethanol molecule. As the light passes through the filter it is received by a photocell whereupon a calculation determines the amount of light originally dispatched versus light received at the photocell after passing through the specific ethanol (alcohol) filter and magically determines your breath alcohol content.

Yes, but how does the alcohol get into my breath anyway after I consume it?

Continue reading "To Blow or not to blow part 2" »

June 15, 2007

To blow or not to blow....part I

One of the most common questions I get asked is whether to blow in the breathalyzer machine, known as an EC/IR in Maryland. This post will be a multi part post dealing with the machine, how it works, the advantages and disadvantages of blowing, your rights to blow or not blow and more.

To begin with, after being arrested and taken to the station, the police MUST read to you or give to you to read, certain rights under Transportation Article 16-205.1. The rights are summarized on a form known as a DR 15. From time to time the form is updated. The proper rights MUST be read to you from the proper form or you can move to exclude the results of your test from any court hearing. Your submitting to the test is evidenced by your signature on the form which they will ask you to sign.

Importantly, this form can be somewhat confusing as written and interestingly, you have an absolute right to the advice of an attorney prior to blowing in the machine. This is not a well known fact because the police are not required to inform you of this right and in fact, they will not. However, like Miranda, once you ask for an attorney they must allow you attempt to speak with one or any results or refusal may be suppressed. This is very important. If you don't understand your rights as read to you, ask for a lawyer's advice prior to giving any breath sample.

If the police deny you the right to speak with a lawyer when requested, then do not argue with them, you can either blow or not blow, either way, you have been denied counsel and the results of any test may be suppressed by qualified counsel. Miranda warnings do not necessarily apply in this setting per se, but the DR 15 rights and your right to counsel certainly do. You even have the right to a face-to-face meeting with counsel prior to giving any breath sample as long as such a meeting does not interfere with the two hour limitation to provide a sample.

This is a little known right which no police officer will ever tell you, but most won't hesitate to deny when requested. It is not necessary to argue with the officer on this point, merely to exercise your right and to ask.

Continue reading "To blow or not to blow....part I" »

June 9, 2007

Maryland's Preliminary Breath Test (PBT) 16-205.2

Following the field sobriety exercises (FSTs) the next "test" you may be asked to take is a Preliminary Breath Test or PBT. The PBT is a small device about the size of two cigarette packages stacked end to end. You may be asked to blow in the device and it will register a number similar to the "formal" machine back at the police station. There are several things you need to know about the PBT device vis a vis a DUI or drunk driving stop.

1. The test is completely voluntary on your part. You do not need to take it; the police may not even care if you do or don't (unlike the FST tests which they will do everything they can to encourage and trick you into performing). However, there are certain legal rights the police are supposed to read you before they ask. The rights are covered by a statute known as 16-205.2 of the Transportation Article. Basically, it says the test is voluntary on your part and if you take it, you still will be required to take the breath test back at the station house. If you do elect to take the test, the result can NOT be used against you in a court of law. However, the purpose of the test is to aid the officer in the arrest decision.

2. A trick the cops like to play is to have you blow in their device and then not tell you what you blew. This makes it a little difficult for you to decide whether you want to blow back at the station house or not. Therefore, if you do decide to blow in the PBT device, it is wise to make an agreement with the cop ahead of time that you will blow in the device IF he agrees to immediately tell you the number. This information may help guide you in making an informed decision about what action to take at the police station where you will be asked to blow again.

3. It is important to understand and not be confused that whether you decide to blow or not blow in the PBT device, chances are that you still will be required to blow back at the station house. If you choose not to blow at the station house, you will face certain administrative MVA penalties and possibly additional tickets. Therefore, one may do whatever he pleases on the street with no repercussions, but understand your responsibility at the station house does not change. Of course, that's not to say that blowing back at the station is always a good idea either, that decision must be considered based on a number of factors.

Continue reading "Maryland's Preliminary Breath Test (PBT) 16-205.2" »

June 2, 2007

What are my Maryland DUI Rights?

So what are my Maryland DUI rights anyway when I get pulled over late on a Saturday night for a suspected DUI/DWI infraction? Some friends tell me to blow others say don't blow, do the field sobriety tests, don't do the tests, answer questions, don't answer questions and what about my Miranda rights and don't the police have to advise me of them?

Alright, here it is! When stopped by a police officer, he must have a legal basis to stop your car. He will always come up with a reason to stop you, but many times we can challenge that. Now, you have been stopped, once the officer smells alcohol on your breath, you are basically cooked! He is going to arrest you. Everything he does from this point on is geared towards obtaining evidence to use against you in Court. That is important, everything from here on is engineered to use against you in court!

The cop does not present it that way, he tells you that if you will do the tests (we like to refer to them as exercises or roadside gymnastics) that he might be able to let you go. It is highly unlikely this is going to happen. The DUI coordination exercises are relatively complicated for a sober person to perform much less anybody that has had a drink or is scared late at night, or is not dressed properly to attempt them or is uncomfortable on the side of the highway. Each time you make a minor mistake on the DUI exercise, he writes that down and uses it against you in court. By the time you have completed all the exercises, the cop has quite a little arsenal to use against you; and oh yes, you are being arrested and taken to the station where more evidence will be gathered to use against you. Again, the reason for the DUI arrest is largely because of the odor of alcohol on your breath, the field sobriety exercises were just the icing on the cake to arrest you.

The field sobriety exercises consist of the horizontal gaze nystagmus test, an eye test looking for jerking of the pupil, the walk and turn test, wherein you are told to walk on a line, heel touching toe and turn around and come back. and the one leg stand, where you are asked to balance on one leg for thirty seconds without falling over. Good luck.

Continue reading "What are my Maryland DUI Rights?" »