DUI breath tests

Breath Tests by Law Enforcement

When a law enforcement officer makes a vehicle stop and suspects that the driver may be intoxicated, the officer will conduct a “field sobriety test” on the driver, and may ask for the driver’s consent to some form of chemical test for intoxication. This can take the form of a hand-held breath device device used by law enforcement (PAS), or — after an arrest, blood tech administered breath and/or blood tests.

Issues related to defense in a California DUI Breath Test cases

There are a number of different manufacturers of breath test machines, and a skilled and experienced DUI attorney should have some experience with the machine used during the course of investigation related to your DUI case. If not, he should be committed to obtain that experience before taking your case to trial.

The breath machine measures a very minute sample of alcohol contained in your breath. The theory is that the breath sample being measured is made up of what is called Alveolar Breath. This is breath from the deepest part of your lungs. The machine cannot identify specifically that the breath sample is Alveolar Breath. The machine assumes that the sample is Alveolar based on a mathematical formula or algorithm. In reality many if not most breath samples are tainted with a breath sample not exclusively consisting of Alveolar Breath. The result of this is that the breath sample is contaminated with a sample containing what is commonly called “mouth alcohol” that will contain a higher concentration of alcohol than the Alveolar Breath and result in a false high reading of your true Breath/Blood Alcohol Concentration.

In addition to the problem of contamination of the Alveolar breath sample the concentration in your breath may be higher than your true blood alcohol concentration while your body is still absorbing alcohol.

Also you are commonly tested sometime after you have been driving and your breath/blood alcohol concentration will likely have risen since you were driving. The prosecution will bring in an expert to limit the time frame when your body absorbs alcohol in order to try to avoid this inherent problem with breath testing. A skilled and experienced DUI lawyer will know how to cross-examine the prosecutions expert to ultimately provide evidence in your favor on this issue.

Additional Considerations related to Breath Testing

  • No continuous observation for entire 15 minutes before first breath sample (e.g. Officer attempts to include transportation time as part of required observation period or you were left alone at anytime prior to taking the test -e.g. used restroom or telephone or placed in holding cell/room).
  • During those 15 minutes before the test, you burp, belch or have slight regurgitation of gas that is relatively quiet.
  • Vomiting, belching within 15 minutes of test – no rinsing of mouth, or inadequate deprivation period before retest.
  • You may not be a proper subject for breath testing.
  • You have a physical problem or health limitation:
    • gastric reflux
    • hiatal hernia
  • intestinal problem (e.g. Gastro Esophageal Reflux Disease Irritated Bowel Syndrome, or Acid Reflux Syndrome) diagnosed and treated before date of arrest or otherwise confirmed to have existed prior to arrest;
  • Dental condition (e.g. gum disease/gingivitis/pockets around roots, dentures, crowns or bridgework, which may trap mouth alcohol and contaminate a breath machine sample);
  • Diabetes related symptoms;
  • Respiratory problem (e.g. asthma, bronchitis, emphysema or chronic obstructive pulmonary disease).
  • The breath test room or circuitry has a problem (e.g. Radio Frequency Interference from a cell phone, officer’s radio, copy machine or other equipment with surge capabilities) which may cause machine to give artificially high reading; smoking in or near machine; shared power supply with heater or other appliance – must be dedicated “clean” electrical source; or recently painted walls or trim).
  • You have had recent environmental exposure to volatile fumes (lacquer, gasoline, paint, dry cleaning fluids or even 409) which have cumulative reading, causing chemical interference/falsely elevated result.
  • Air bag defenses – “the Tyndall effect’ – diffusion of light; propellant exposure; cut lips; lung and airway irritation & fluid build-up from caustic gas propellant.
  • High test result, yet you never urinate for 3 to 4 hours or more – physiological impossibility.
  • Unintentional alcohol (e.g. from Nyquil, Vicks Formula 44, lip balms, toothache drops).
  • Something in mouth containing alcohol (e.g. Breath Drops with SD alcohol).
  • Something in your mouth that contains or stores small quantities of alcohol, food, bread, chewing tobacco;
  • Something in mouth that contains interfering or contaminating substance (e.g. Skoal snuff – wintergreen; Altoids curiously strong mints).
  • Improper or out of agreement tests, without follow-up tests to correct [both results must be within 0.02% of each other].
  • Officer refuses to permit your request for a second, independent test;
  • Denial of blood test;
  • Officer not trained or marginally trained in accordance with the standards of Title 17 of the California Code of Regulations (e.g. not trained in theory of operation of machine).
  • Officer fails to follow manual or training protocol.
  • Inadequate inspections by machine inspectors (e.g. no linearity proven).
  • Police report supports sobriety, or lack of investigation of alternative causes.
  • Rising blood alcohol level showing time of driving BAC would have been lower than time of testing.
  • Elevated breath temperature (e.g. caused by fever, hot tub, sauna, detention in hot sun or back of patrol car in summer, dancing, menstrual cycle, etc.)
  • Built in margin of error based on presumptions regarding breath temperature;
  • Cumulative Margin of error related to regulatory testing procedures;
  • Breath/blood ratio (2100:1) not proven to be your ratio; show how minor error gets multiplied 2100 times; 0.12 = 17/10,000,000th of an ounce. Show you have abnormally low blood/breath conversion ratio through testing and expert.
  • Difficulty blowing into the machine;
  • Officer requiring you to blow into the machine with strain causing false high reading;
  • You have blowing pattern irregularity (e.g. blubbering and crying causing artificially
    high water vapor problem).
  • You have been on strict high protein diet and then introduce carbohydrates, thereby triggering auto-generated alcohol production when ketones are converted to isopropyl alcohol (or the”auto-brewery” syndrome).
  • You have diabetes, are borderline diabetic or are hypoglycemic and consume alcohol
    in any amount, causing conversion of high acetone levels into isopropyl alcohol.
  • Breath test operator gets first BAC results, which will not support a .08% per se case,
    then waits a few more minutes and retests, obtaining a reading above the per se limit.
  • Officer gives chemical test admonition, but then goes too far by threatening dire warnings for which there is no factual basis or misstates consequences regarding possible license suspension.
  • Testing occurred more than 3 hours after driving;
  • Consumption of alcohol after driving;

In all cases, you need an experienced DUI attorney to review the evidence and challenge any and all tests or the way they were administered. The state has the burden of proving these tests were conducted properly, and the Law Office of Johnson & Johnson has an excellent record of challenging DUI evidence. Call us today at (925) 952-8900.