Articles Posted in Breathalyzer

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What You Need to Know about Maryland New DUI Law: Noah’s Law

GlassDriving after having a few drinks on a night out is never a good idea, and the DUI penalties in Maryland that were once considered potentially lax compared to surrounding states will now be made to be far more severe for those finding themselves in this unenviable position, especially if there was a car accident. By way of background for the new law:

On December 3rd, 2015 Montgomery County officer, Noah Leotta, was fatally struck by a drunk driver. Leotta was returning to his car after conducting a stop on another vehicle when Luis Gustavo Reluzco, 47, was driving and hit both the police cruiser and officer Leotta. The result of this young officer’s death lead to the Maryland State Senate’s unanimous passing of ‘Noah’s Law’ in March of 2016 and will go into effect this Saturday October 1st, 2016. The DR-15 (Advice of Rights) which the officer must read to you prior to requesting you to blow in the machine at the police station has changed accordingly and become far more severe than it has ever been regarding the MVA consequences to your driver’s license.

The new law addresses test failures (ie. a blow of .08 or more) and alcohol test refusals before court and the effect of a DUI conviction on your driver’s license after court. Noah’s law lowers the blood alcohol level at which ignition interlocks are permitted and encouraged to be installed from 0.15 to 0.08. More specifically, you can either install an interlock for 6 months or you will be suspended for 180 days for a first offense .08 case; this is an increase from the standard 45 day suspension.  Noah’s law will also essentially require an interlock for individuals who have refused a breath test, not just those who have been convicted of driving under the influence. Again, if you do not take the interlock for a period of 1 year following a refusal to blow, your license will be suspended for 9 months.  Thus, it does not make much sense to go without a license for 9 months or 270 days when you install the lock for a period of 12 months and be on your way.  As you can see in the convenient chart below, the new law will significantly increase mandatory suspension periods for those who choose not to install the interlock device.  The state is sending a very strong message that if there is any alcohol or DUI infraction along these lines, an interlock is all but mandatory if you need to drive.

Once the law goes into effect on Saturday, the new legal consequences will give Maryland the push to join the other 27 U.S. states that currently require interlock devices for persons convicted of drunk driving. The sanction of ignition interlocks for those convicted of DUI has reported to yield the lifesaving results of not only a 67% drop in DUI recidivism, according to U.S. Centers for Disease Control, but also a reduction in alcohol-impaired traffic fatalities mostly in part to laws mandating interlocks for all convicted drunk drivers; NHTSA data.

 

 

Comparison of Current Administrative Per Se Penalties

v

 Increased Administrative Per Se Penalties Under the Bill

 

                             

                        Above 0.08

   

Above 0.15

 

     Test Refusal

Offense Current New Current New Current New
First 45 days 180 days 90 days 180 days 120 days 270 days
Second (subsequent) 90 days 180 days 180 days 270 days 1 year 2 years
Accident death 6 mths same 1 year same

 

Source: Department of Legislative Services                                              BAC = Blood Alcohol Concentration

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Zero Tolerance for DUI in Maryland: .08 breath alcohol is NOT the limit

A common misconception is that the legal alcohol limit for a DUI in Maryland is a .08 BAC. Most people believe that if you blow below a .08 then you are home free. Maryland is actually a zero tolerance state. This means that any amount of alcohol in your system can and will trigger DUI and DWI charges. Unfortunately, Maryland continues to broadcast this misinformation to the public and our clients continue to be amazed when we explain a .03-.05 is enough, under certain circumstances, to result in a driving while impaired charge.

This misconception has been an issue for years. Maryland, along with most states continues to run campaigns saying .08 is the limit, however it isn’t. A lower BAC number is just as damming as a .08. The only difference is that if you did spectacularly on the field sobriety tests you can attack the notion of impairment unlike a .08. .08 is Per Se impairment, this means that the defense cannot argue (or will be completely ineffective if they do) that the driver was not impaired by the .08. At a .07 the presumption is that the driver is impaired. The defense will have to overcome this presumption through evidence and through testimony.

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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 10.35.02.0(g). 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.

Deputy%20Dawg.png

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.

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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.

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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.