Maryland DUI Lawyer Blog

It's getting a little scary out there folks- come on wake up! I saw a blurb of an article that a DUI attorney in Minnesota successfully petitioned the court for the source code of the breathalyzer machine on behalf of his client. This is a challenging discovery request which, to my knowledge has only been successfully advanced in Florida and now Minnesota. The importance of the source code in DUI breath cases is that the code is the brains of the breath machine that yields a BAC (breath alcohol content) number. The breath machine is essentially a computer with a place to provide a breath sample. Therefore, in fairness to a defendant, one might actually want to know how the computer determines a number in order to know if he is being fairly accused of DUI. Remember, having a drink and driving a car is not enough to be convicted of DUI (well, it's not supposed to be enough).

So I'm reading the short article, and thinking that's progressive and it's good! Then I began reading the comments underneath the article. Most of the comments make sense, they say that the machine is built around a very old computer chip which had run the Radio Shack computer TTRS-80 from twenty plus years ago; the comments say that the code is probably relevant to see how the machine is programmed in order to determine if it is fairly and accurately yielding a number, etc.

However, then I read a thread of comments from that article and a linked article wherein people are missing the mark. They suggest that the machine programming is of no consequence, that the defendant is simply using the discovery as a stall tactic in his case, that if the machine says he's an .08, then he must be an .08. One comment that I had to reply to suggested that "if the defendant took the test, it's because he knew he was guilty!" I was compelled to respond to that comment to help the writer understand that the police coerce suspects into taking the test by threatening them with the loss of their driver's license and with jail! I also explained that in every state, if you elect not to take the test, that you will be summarily punished with enhanced penalties against your driving privilege. Therefore, in the overwhelming number of cases, a breath sample is provided, and in the few cases where one is not, it is generally presumed by the court/jury that the suspect was in fact under the influence.

The downright scary concept was the number of comments suggesting that the magic box is correct and that's that! That the box should not be questioned, that it's a stall tactic to request the code, that if a suspect had a drink then he's guilty anyway, that the defense attorney is merely scrambling to defend the client. This type of thinking is lazy and detrimental to our system of justice, and I pray that it does not represent main stream thinking on this subject. That we should not bother to look at the man behind the black curtain. DUI is a crime, like any other crime it has serious and long lasting ramifications. If a suspect is guilty of the crime, then he's guilty of the crime. But for crying out loud, is it too much to ask that the government, its witnesses and its machines be held to the same scrutiny that we would hold any other criminal evidence?

Why is there an underlying current that if a defendant is charged with the crime of DUI/DWI that he must be guilty? Police have a strong motivation to arrest as many drinking and driving suspects as possible. A suspect can blow a .02 and still be arrested and charged, I know because my client has such a case next week in Baltimore City. If the police have such strong motivation (quotas, overtime pay to appear in court, advancement in the ranks, bonus money as happened in Florida [until many cases were subsequently thrown out] ), we really need to be more skeptical and critical thinkers when it comes to evidence offered by the government in DUI cases, just like we would in any other type of criminal matter.

Continue reading "Wake up and smell the coffee beans" »

Posted by Bruce M. Robinson | Permalink | Email This Post

Posted In: Breathalyzer

Bookmark:

Another question regarding the ubiquitous DUI breath machine, in Maryland the EC/IR; soon to be replaced by the newer and more advanced EC/IR II. Question: what about if I burped before I blew in the machine? What if I have GERD, acid reflux, or other digestive issues?

GERD and/or acid reflux are medical conditions that cause a person to suffer heart burn types of pain in their chest which often results in belching gaseous stomach contents up through the esophagus and into the mouth. These gas contents can include stomach acid which burns the chest, ie., heart burn, and can include alcohol that resides in the stomach or upper digestive tract.

Ok, so what? There can not be enough alcohol in the upper digestive track to actually influence the alcohol reading on the magic box, right? Consider this: as you know from earlier posts, the machine extrapolates blood alcohol content in the body by measuring the perceived breath alcohol content and then multiplying that number by 2100! Therefore, if the magic box perceives the slightest degree of breath alcohol, whether it be real or as a result of acid reflux, it then multiplies that number by 2100 and the box states that you are drunk. Once the box states that you are drunk, the cops say you are drunk and you have a steep uphill battle to disprove the results of the magic box. Well wait a second, how can a box state I'm drunk and what about being innocent until proven guilty in a court of law? That's a post for another day, but the short answer is- too bad! The government has determined that if a machine states that you are drunk, then that's good enough for them, you are presumptively drunk and the only way off the charge is for you to prove your innocence.

Getting back to the subject at hand, mouth alcohol is correctly perceived to be enough of an issue that the police are required to watch you for 20 minutes prior to providing a breath sample. Their "observation" of you is actually recorded on the magic tape that comes out of the magic box. Additionally, the Maryland toxicology regulations require that there be a 20 minute time period and that no foreign matter be placed in your mouth during this time period, not even water. Any mouth jewelry or removable dental items should also be taken out of your mouth 20 minutes prior to providing a breath sample as these items can and will trap small amounts of alcohol in your mouth which can be detected by the machine.

The point being that mouth alcohol or items that can trap alcohol in your mouth, even in small amounts, can multiply and turn into big problems- unfair problems. Acid reflux can be a serious contributor to these types of problems because if you burp shortly before blowing in the machine, you can unknowingly provide the alcohol either in the esophagus or the mouth that will shortly be delivered in to the machine and factored into the machine's results. This is how you can drink 1 beer and end up in big trouble. This is why Maryland, and every other state's "presumption" of guilt based on a number, typically .08, generated by the magic box is really a bad idea.

Just a word for the wise....

Posted by Bruce M. Robinson | Permalink | Email This Post

Posted In: Breathalyzer

Bookmark:

People ask me if it matters how you breathe into the breath machine. Is it good to hold my breath? Should I breathe heavy? Should I breathe quickly? The answer is, it does matter how you breathe into the device. Basically, you want to do the opposite of whatever the cops tell you to do- then you will get a fair result (notwithstanding the machine's shortcomings that were previously discussed).

A client came in to see me and said the "the officer told me to hold my breath and blow hard into the machine until he tells me to stop." The officer actually went so far as to write these instructions down on the DR-15A officer's certification and temporary license. I must say, I have never seen that written down before. The officer may not have even known what he was doing, they may just be trained that way, but here is the result of that action.

There have been a number of scientific studies which have determined that the breathing pattern of a driver absolutely impacts the resulting number. Accurate Measurement of Blood Alcohol Concentration with Isothermal Breathing. 51(1) Journal of Studies of Alcohol 6. If a driver holds her breath for 30 seconds before exhaling she can unknowingly increase her BAC (breath alcohol content) by as much as 15%. Conversely, hyperventilating for a similar period of time before blowing can have the effect of decreasing the BAC by as much as 10%. Keeping your mouth closed for several minutes before blowing versus simply opening your mouth and breathing regularly or with short quick exhales can have an impact. How can this be you ask?

Remember that the exchange of alcohol from blood to breath takes place in the alveolar lung air. If a driver holds their breath they are allowing whatever alcohol is in their mouth and airways to build up right before exhaling in the machine. Additionally, sustained deep hard breathing into the machine extracts the maximum alcohol content from the lungs into the machine as opposed to more shallow breathing which will not have such a high level of alcohol content. The machine has a gage on it that monitors exhaled air flow which has a tendency to require a certain air volume but it does not take much to meet the requirement of the machine.

Maryland law and the toxicology regulations Section III Appendix J require that the two blows that are required must be within .02 of each other and if they are not, a third sample is required. One of the reasons for that is because different techniques employed while blowing into the machine can have dramatically different results. Thankfully, the State does use the lower result against the driver.

Therefore, if you can not remember how to blow into the machine when asked to do so by Maryland's finest, simply employ a technique directly contrary to what the officer who is trying to convict you, asks you to do, and you should be alright.

Continue reading "Does it matter how I breath into the device? " »

Posted by Bruce M. Robinson | Permalink | Email This Post

Posted In: Breathalyzer

Bookmark:

It is best to stick to crabs and a little beer (if you are going to drink at all) on this holiday and to stay away from bread products: white bread, donuts, pretzels and the like. The reason why is the bread products can get you convicted of a DUI. Research has shown and scientific articles have been written which indicate that the consumption of bread products can actually result in you registering a BAC of up to .05 or more in some cases.

The reason is that there is a fermentation process with white bread and a by-product of fermentation with yeast is alcohol. The resulting alcohol, while in relatively small amounts, can be problematic if a driver has consumed any other alcohol. That is, a .05 from two beers could become a .10 under these circumstances. Additionally, bread that is retained in the mouth between teeth has the additional benefit of absorbing and trapping alcohol that is consumed by the driver. This can have the detrimental effect of registering even a higher number on a breath machine.

Sounds hokey you say? Not so. I have personally tested the EC/IR machine. I have personally placed alcohol in my mouth and eliminated same and later provided a breath sample which was extremely high. This is known as mouth alcohol. The machines are suppose to have mouth alcohol detectors, known as slope detectors for this very reason, but Maryland does not use them. Considering that the consumption of bread can register its very own BAC number and further considering that bread tends to absorb liquid and thereby allow for mouth alcohol, I would bare these important issues in mind if you are asked to provide a breath sample.

For more information on this topic see “Intoxilyzer: A Bread Testing Device?”, 15(4) Drinking/Driving Law Letter 52 (1996).

Posted by Bruce M. Robinson | Permalink | Email This Post

Posted In: Breathalyzer

Bookmark:

To this point I have discussed a number of reasons why a person should be skeptical of the results obtained by a breathalyzer. Unfortunately, many judges are not as skeptical so one must be educated on these matters in order to make an informed and voluntary decision regarding whether to blow or not to blow. Before leaving the issue of the reliability (or lack thereof) of the machine I want to discuss the difference between absorption and post absorption and how that affects your true BAC versus your machine number.

A common problem that a driver may run into is being tested by the machine shortly after leaving a restaurant or drinking event. If a driver is stopped shortly after consuming alcohol, chances are the driver is in the absorptive phase. That is, his body is still absorbing the alcohol that was recently consumed. The absorptive phase generally lasts from 45 minutes to as much as two hours after drinking has abated with peak absorption generally at one hour whereupon the driver has reached equilibrium. Equilibrium meaning that the alcohol is evenly dispersed throughout the driver's body. The biggest factor that controls absorption is food intake. Food in the stomach can have a significant impact on when alcohol passes from the stomach to the small intestine for absorption.

In the absorptive phase, the alcohol in the body is not evenly distributed throughout the body but rather resides in higher doses in different parts of the body. In the post absorptive phase, the alcohol content has evened out and is more uniform throughout. In the absorptive phase, one of the most significant aspects is that alcohol content in arterial (artery) blood will be higher than in venous (vein) blood. When you give a blood sample it is drawn from a vein. During peak absorption arterial BAC can be as much as 50-60 percent higher than venous blood. So, why is this important in breath cases?

This is very important because the alveolar sacs of the lungs where the air exchange takes place between the blood and the lungs are immersed in arterial blood, not venous blood; therefore the breath sample obtained by the machine will be based upon pulmonary BAC which during the absorption phase will be markedly higher than the veinous BAC if a blood draw was performed.

This fact regarding absorption stage is well known and supported among the experts in the field including Dr. Kurt Dubowski, a prominent professor at the University of Oklahoma, however, if you were to ask a breath operator about this point, he would look at you like you had 3 eyes.

Continue reading "To blow or not to blow part 4" »

Posted by Bruce M. Robinson | Permalink | Email This Post

Posted In: Breathalyzer

Bookmark:

So now you know a little bit more about how the magic box works, what do you need to know next? The important thing to know is that they can be highly unreliable. These magic boxes that sit on the police officers dusty old desk are not all they are cracked up to be. Unfortunately the boxes are powerful, they have the power to single handedly convict in the overwhelming majority of cases, then when you add on top of that the arresting officer's 100% candid and non-biased statement of facts resulting from the arrest, things can get pretty gloomy.

Let's take a look at a few ways these machines are not accurate or fair. As indicated in my prior post, the machine bases its calculation on a ratio of alcohol from blood to breath of 2100:1. That is 2100 units of alcohol in the blood for every single unit of alcohol in the breath. The machine bases its entire existence on this ratio but the problem is many people do not fall into this "average person" category. True "partition ratios" can run from as low as 900:1 to as high as 3500:1. If a driver's ratio is different than what the magic box bases its formula on, then the driver gets an inaccurate number and quite possibly a faulty conviction. The machine uses the same ratio for all people, men, women, big or small; the smallest woman versus the biggest man, the machine says you are all the same. Hmmm.

I have represented petite woman who have sworn they only had 3 glasses of wine yet they blew a .12; I have represented males under 5 feet tall, I have represented folks with known lung disorders, folks with cancer, all the same results. Numbers high enough to convict because the machine says so, but in all likelihood the box was wrong. Naturally none of these folks went to jail, even when they were multiple offenders, but they still had to retain counsel to fight the darn box. They still had to go through a very uncomfortable and expensive process all because their individual partition ratio was different than what the machine says it should be.

Other than partition ratio, are there any other problems you should know about regarding the accuracy of the box? Why yes, funny you should ask. If you are a diabetic the machine can misread, if you are on a diet and have recently lost significant weight, the machine can misread, if there is radio interference in the police station (ie. cop radios), the machine can misread, if you recently placed anything in your mouth before blowing, the machine can misread, if you have a temperature at the time you blow due to menstruation, general illness or any cause, the machine will misread high.

Studies have shown and articles have been written regarding the temperature of the sample. The core body temperature is generally 98.6 degrees F. However, in the article Body Temperature and the Breathalyzer Boobytrap, 721 Michigan Bar Journal (Sept 1982) it discusses the fact that for every 1 degree higher than core temperature, the breath sample will register 7% higher secondary to Henry's law of gases.

This list does not even begin to exhaust the possibilities of error regarding this box. Even Maryland law recognizes that the machine has a .01 margin of error before even getting into the aforementioned matters. There are other issues innate to the machine which can cause false high readings. Interestingly, most police officers/machine operators themselves are unfamiliar with the various short comings of the machine. Ask an breath test operator about the .05 mask which is built into the machine which allows the machine to operate on a blank air sample even though it registers up to .005, he won't even know what you are talking about. However, the manufacturer of the machine does know and has discussed this in prior court testimony. The result, when you blow, the sample can read .005 higher than whatever your true number is without even considering any of the foregoing matters.

Oh yes, there is one other minor matter that has a very significant impact on the accuracy of your number which I will discuss in the next post.

Continue reading "To blow or not to blow part 3" »

Posted by Bruce M. Robinson | Permalink | Email This Post

Posted In: Breathalyzer

Bookmark:

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" »

Posted by Bruce M. Robinson | Permalink | Email This Post

Posted In: Breathalyzer

Bookmark:

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" »

Posted by Bruce M. Robinson | Permalink | Email This Post

Posted In: Breathalyzer

Bookmark:

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" »

Posted by Bruce M. Robinson | Permalink | Email This Post

Posted In: Breathalyzer

Bookmark: