Articles Posted in Breathalyzer

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We were contacted this very morning (Sunday- yes we see clients on Sundays) by a poor guy that was stopped while driving his truck because his fender was hanging too low. Deputy Doughnut smelled alcohol on his breath and demanded the fields (which you do not have to perform). Following the fields, which the accused thought went well, the accused was arrested. At the police station he blew a .06 and was charged with DWI, (driving while impaired). He has two questions:

1. How can I be arrested for DWI while blowing under the legal limit of .08?
2. Did my number get lower as a result of exhaling or breathing out my nose and mouth?

As we know from my numerous earlier posts on the subject, you can and will be arrested even for blowing a low blood alcohol number. The legal limit advertised on TV and road signs is .08, that is a governments dirty little secret. The cops don’t give a hoot about the number because they know they can get you anyway! If you blow a .04-.07 or lower, they can and will arrest you; particularly if you exhibit weird behavior such as driving erratically, or poor field tests (which you should not be doing) or acting strange or showing other signs of impaired coordination. One’s BAC (blood alcohol content) is a great tool for the police and courts to convict you of DUI, but in the absence of .08 BAC number, the cops simply look for other behavior that supports their witch hunt. Poor performance on the field tests is more then adequate to support that endeavor.

Robinson & Associates DUI Firm has been called upon to defend all numbers in DWI cases and we win the overwhelming majority of such cases. However, I remember years ago in Carroll County with a recently retired judge, we had a .06 case and the client was under 21 so the judge must have thought he would use the experience as a learning lesson for that young man and he convicted the client of the DWI charge despite the low BAC. In my 20 years experience that is the only case that comes to mind that we have not been able to beat on a low number. But nonetheless, the clients are still charged, lawyers have to be retained, the case needs to be tried, the client is put through the emotional ringer, etc.
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Here are a few of the most common DUI breathalizer questions we get:

What are the DUI Breathalyzer procedures in Maryland?
Can multiple blows effect my breathalyzer result?
Does burping during breathalyzer increase my BAC number?
Can I be arrested for blowing a low number?

Maryland’s DUI breathalyzer procedures are documented in Maryland Transportation Article 16-205.1 and in COMAR Together they say quite a bit about the requirements for a proper blow and therefore, if interested, you should consult these sections beginning with COMAR because it’s easier to decipher and more to the point. Here are some of the requirements in short:

1. The DR-15 rights must be read to you in their entirety or you must be given the form to read yourself, completely, prior to being asked to blow in their magic happy box. If this does not happen, then your breath results should be excluded both in Court and at the Administrative hearing under 16-205.1
2. You must be watched for 20 minutes by LEO (law enforcement officer). You must be watched by either the arresting LEO, the breath operator or some other cop who has time on his hands (in between doughnuts) to make sure you do not put any foreign objects in your mouth or system. Foreign objects like food, alcohol, water, gum, chewing tobacco, etc can potentially have an impact on your BAC score. This is why many times they will not let you go to the bathroom before you blow; although the nice ones sometimes will.


3. They will then sit you down in front of the machine and basically tell you to take deep breath and blow in the machine until they tell you to stop (the machine will indicate when it has had enough of your breath). TIP: The cops tell you to take a great big breath because the deeper and longer you blow, the higher you go! You see when you breath deeply your getting the deep alivolar breath in your lungs number one, where the alcohol exchange takes place from your blood. Thus the more expelled air you get from there the higher your BAC number will be, versus simply inhaling air in your nose or mouth and quickly exhaling it. TIP 2: The deeper you inhale and hold your breath prior to exhaling, the more time the alcohol has to dissipate into the air that you will exhale. Deputy Dawg knows this and will encourage you to take a deep breath, hold and exhale thus maximizing your BAC score. Conversely, shorter breaths which remain in the mouth, breathing passage or lungs for a short period of time lack the same exchange time and thus result in lower or more fair and reflective BAC number.

4. You will be asked to provide two breath samples to the magic box. If the two breath samples are not within .02 of each other (absolute difference), then you will be asked for a third breath sample. Of the three samples, two must correlate within .02, if they do not, the samples will be rejected completely.

5. Before and after you blow, the machine will do a self test and in the self test, the blank test must report .00 BAC (ie. blank) and then must test itself with a known .08 solution (which the machine has attached to it) and the test must report within 10% of .08, ie. the machines margin for error. TIP: Whoops, bet you didn’t now that! The magic breath machine has a 10% margin of error right from the manufacturer’s own documentation and also in COMAR. Thus, if you happen to blow, say .08 which is enough to find you guilty of the per se charge, it could actually be a .072, under the per se charge. But, who’s counting the details? After all, it’s only your job, life and freedom on the line right?
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This is a guest author contribution regarding Breathalyzer Machines : Maryland DUI Lawyer Blog.

3 Ways Breathalyzers can be Incorrect

Many BAC readings can be incorrect at the time you are tested following a DUI arrest, with the reading being as much as 23 percent higher than it should be due to inaccurate breathalyzer testing. There are a variety of reasons for these problems tracing back to the short comings of the machine design. A growing number of states across the country have begun to pull the black curtain back and look behind the rhetoric of the manufactures, including requiring the source code for the software that runs the machines; a growing number of courts are finding the truth regarding these machines and suppressing BAC results. The following are a few basic problems to look for.

Mouth Alcohol

Mouth alcohol can be caused for a variety of reasons including eating bread, certain medical conditions to burping or GERD. All of these have been shown to significantly raise BAC levels. If mouth alcohol has not been absorbed it can cause the instrument to yield an artificially high BAC number. It is very difficult for breathalyzers to determine where the source of alcohol in the mouth is coming from, and it makes a significant difference if the alcohol in the exhaled air is coming from the lungs or from the mouth and throat; the computer in the gizmo assumes that all the air it is analyzing is coming directly from the lungs, the alveolar air. This is problematic in mouth alcohol cases or oral hygiene products such as Listerine: the computer analyzes the exhaled air, but when the air passes through the mouth, it absorbs the alcohol particles from the mouthwash and leads to an artificially high BAC level which will then be used against you in court.

Homeostatic Variables

While incorrect alcohol readings secondary to mouth alcohol is a significant problem with breathalyzer machines, the machines likewise do not account for variable partition ratios in the subject which can result in substantially inaccurate readings. The partition ratio (ratio between BAC and breath alcohol content) is correlated at 2100:1, but subjects may range from 1500:1 to 2400:1 or higher, leaving a large margin of error. Consider, if one’s actual BAC level is .08, the breathalyzer could identify this range from a .065 to a .09. However, if one’s actual level is under the legal limit, .07, and the personal ratio is 1500:1, you will end up with a BAC level of .10, above the legal limit, through no fault of your own. A partition ratio can fluctuate far a variety of reasons including age, health, or whether the subject is in alcohol absorptive/post absorptive phase to name but a few. Dr. A.W. Jones, Assistant Professor in Experimental Alcohol Research at Sweden’s Karolinska Institute has confirmed the variations of blood to breath alcohol rations in different individuals and in the same person from time to time.

After conducting extensive studies, British physicians have concluded the following:

“the blood/breath ratio should be regarded as nothing more than a statistical convenience suitable for defining the limits of a particular universe. Its use to derive individual blood alcohol levels from breath alcohol levels has little scientific justification and its use in this way for law enforcement can only be deplored. We reiterate our view that breath analysis is not an acceptable method for accurately determining blood alcohol concentrations” [Alobaidi, Hill and Payne, Significance of Variations in Blood/Breath Partition Coefficient of Alcohol, 2 British Medical Journal 1479, 1481 (December 18, 1976)]

Interfering Components

Breathalyzers are designed to look for the ethyl alcohol molecule but they can be fooled by substances that appear similar in chemical composition to alcohol, thus misreading these substances as containing alcohol content. Acetone is one of the most common substances that can confuse breathalyzers and it is found in a large number of diabetics. Additionally, people who are exposed to certain types of paint fumes, ie. painters, can also confuse the breathalyzer and cause it to register a BAC level that is higher than it should be.

In addition to the foregoing, there are many other reasons why the results of a BAC reading may not be accurate; there will be ongoing debate as to the effectiveness of the machines continue to be tested, but as long as the machines allegedly assist the government in keeping drunk drivers off the road, much of the foregoing falls upon deaf ears.

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At this point we all know that the breath machine, in Maryland it’s the EC/IR, in DUI/DWI cases is a vital part of the DUI conviction process; that’s why the legislature has its very own law for blowing a number of .08 or greater into the contraption. The law is known as Maryland Transportation Article 21-902(a)2 or the per se law. This law says that if you blow a .08 or higher, your are in violation of this statute and therefore you are GUILTY of this crime, irrespective of any other details regarding your case. Pretty stringent huh? Particularly if you consider that these machines are not particularly accurate in determining a person’s BAC (blood alcohol content).

How can I say these machines are not particularly accurate? Well, don’t take my word for it, I’m just a lawyer. However we should take the word of very learned and highly regarded experts in the field who have written numerous articles on these machines. In a nutshell, the machine utilizes a partition ratio (a formula) to calculate the ethanol that it senses on ones breath and to extrapolate out what it believes a person’s blood alcohol content should be. The machine then spits out that number on a cash register sized piece of paper and you then have to fight the machine or be convicted of DUI.

The problem is that the machine utilizes a constant partition ration number of 2100:1 for all people. So the machine multiplies the parts of alcohol that it senses in the breath, it calculates that number by 2100 and it says the result is your BAC or blood alcohol content. Big, small, tall, short, male, female, black, white, Asian makes no difference the machine calculates 2100:1 partition ratio. Are all people made alike? Does the 6’8″ NFL player have the same body makeup as the 5’2″ soccer mom? I don’t think so and either do the experts in the field.
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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 (at the time of this writing) has only been successfully advanced in Florida and now Minnesota. The importance of the source code in Maryland drunk driving 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.
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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….

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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.
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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).

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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.
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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.
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