Monthly Archives: February 2015
One of the more common questions I get regarding breathalyzers is “Can I do anything to trick the breathalyzer?”
Although it is true that breathalyzers are, by themselves, inaccurate, many people are mistake when they believe that they can trick a breathalyzer into producing a lower reading. In fact, many of the “tricks” that people believe will lower the breathalyzer will have no effect on the reading or may actually increase the reading.
Here are some of the more common methods used by people in trying trick the breathalyzer and their effects on the breath results.
This trick is based on the mistaken belief that gas from the stomach contains less alcohol in it than air from the lungs. However, according to a 1992 study from the University of Wisconsin, belching into the breathalyzer had no effect on the blood alcohol content reading.
Both breath sprays and mouthwashes contain alcohol. Although the breathalyzer is intended to test the air which comes from deep in the lungs, it can also collect air from the mouth as well. Thus, using a breath spray or a mouthwash could increase the blood alcohol reading than what it would otherwise have been.
The belief is that the metals of a penny will react with the alcohol causing a breathalyzer reading to be so high that there is no conclusion other than that the breathalyzer was malfunctioning. The air that is exhaled into the breathalyzer comes from deep within the lungs. This air is called alveolar air. The copper located in the mouth would not affect the alcohol content found in the alveolar air. This was confirmed by Discovery Channel’s Mythbusters. In a 2003 episode, the hosts Adam Savage and Jamie Hyneman tested this trick and busted it. The pennies had no effect on the breathalyzer.
Yes, you read that correctly. David Zurfluh, an 18-year-old from Stettler, Alberta, Canada ripped the crotch out of his underwear and stuffed it into his mouth in the hopes that he could reduce the reading on the breathalyzer. Zurfluh has not been the only one. Others have made the same mistake of believing that fabric in the mouth from articles of clothing will absorb the alcohol in the mouth, thus reducing the blood alcohol content reading. As I previously said, the air that is exhaled in the breathalyzer comes from deep in the lungs and fabric in the mouth will not will not affect the reading.
Many people believe that they can sober up by drinking coffee. When someone who has been drinking alcohol then drinks caffeine, they are only attempting to make themselves more alert or energized. Being alert has no effect on a person’s blood alcohol content which is what the breathalyzer tests for.
According to the study, “How Breathing techniques Can Influence the Results of Breath-Alcohol Analysis,” holding your breath for 30 seconds before blowing into a breathalyzer can increase the blood alcohol content reading by 15.7 percent.
The least well known trick is the only one which has been shown to reduce the blood alcohol content reading of breathalyzers. According to the same study above, hyperventilating for 20 seconds prior to taking a breath test reduced the blood alcohol content reading of the breathalyzer by 10.6 percent. Simply put, the hyperventilating DUI suspect is replacing the alcohol gas located in the lungs with fresh air.
In the past few months, you may have seen Youtube videos have been popping up left and right showing drivers in Florida passing through DUI checkpoints without having to submit to the standard inconveniencies normally associated with DUI checkpoints.
One video in particular (https://www.youtube.com/watch?v=YqEXTVe7MCQ) has been view more that 2.2 million times and has inspired others make their own videos driving through DUI checkpoints, most of which are similar in content.
Drivers pull up to DUI checkpoints and instead of rolling down their windows to speak to the police and possibly give a breath sample, they motion to a Ziplock baggie dangling by a string from the top of the closed window.
The checkpoint officers look at the baggie which contains several items; a driver’s license, proof of insurance, registration, and the “fair DUI flier.” The flier, created by Boca Raton defense attorney, Warren Redlich, states in bold lettering, “I remain silent. No searches. I want my lawyer.”
After inspecting the contents of the baggie, the officers wave the motorists through the checkpoint.
Although many of the YouTube videos show officers waving motorists through the checkpoint without incident, many law enforcement agencies take issue with the approach claiming that it’s a way for drunk drivers to avoid arrest.
Redlich, however, created the “fair DUI flier” to protect sober motorists from a false arrest. “People don’t realize that innocent people get arrested for drunk driving; it happens a lot,” said Redlich and I wholeheartedly agree.
I’ve said it before on this blog before that I, and other DUI defense attorneys, have defended many people where the arresting officer “observed the objective signs of intoxication” and it was later determined that the person was well below the legal limit or even sober. So why give them the opportunity to “observe” the bloodshot eyes, hear the slurred speech, smell the alcohol, etc.?
“If you don’t roll down your window and don’t speak, you’ve taken away some of those,” Redlich told NBC affiliate WTVJ.
Redlich’s method doesn’t sit well with Sheriff David Shoar of St. Johns County and president of the Florida Sheriffs Association. Pointing to the Michigan Department of State Police v. Sitz case that I mentioned in my last post, Shoar told the associated press, “[Motorists] wouldn’t be allowed out of that checkpoint until they talk to us. We have a legitimate right to do it.”
Sorry, Mr. Shoar, you’re only half right.
Sure, law enforcement has a legitimate right to set up checkpoints. They do not have a legitimate right to force motorists to talk to them. In fact, it is the people’s constitutional right not to talk to law enforcement. And Redlich’s flier only ensures that people exercise their constitutional rights.
I’ve posted often in the past about "The DUI Exception to the Constitution" and how constitutional rights in drunk driving cases have been steadily eroded over recent years. See, for example, The DUI Exception to the Constitution and Who Cares About DUI Suspects?.
One of the most extreme examples of this is the near absence of due process and constitutional rights in administrative license suspension hearings. See DUI DMV Hearing: Where’s the Due Process?.
To take one example, let’s take a look at California’s system of "due process" in a DUI license suspension proceeding. To begin with, the hearing is not presided over by a judge or even an "administrative law judge" — or even a lawyer. Rather, it is presided over by a "hearing officer" who has no legal training, and possibly not even a college degree — and yet he will be making decisions on such things as admissibility of evidence without any training in evidence or other legal matters. Worse, this supposedly "impartial" hearing officer is an employee of the DMV — the very agency who is suspending the license (and wants to see the suspension upheld)!
So who is the prosecutor in the DMV license suspension hearings? Same Guy. Yes, this uneducated employee of the DMV serves as both prosecutor and judge! If the hearing officer offers evidence against the accused driver, and the driver makes a legal objection, this same hearing officer rules on that objection and decides whether his own offered evidence is admissible. He will, of course, decide at the end of the proceeding whether his employer’s suspension against the driver is upheld or reversed. You can imagine the inevitable outcome.
To take a recent example of this extreme denial of constitutional rights in a DUI case, reported in The Newspaper.com:
North Carolina Court Admits Illegally Obtained Evidence in License Case
Police may not violate constitutional rights to obtain a drunk driving conviction, but the Department of Motor Vehicles (DMV) can. The North Carolina Court of Appeals came to that conclusion last week in reinstating the driver’s license suspension of Myra Lynne Combs.
On January 6, 2013, Mount Airy Police Officer David Grubbs wrongly stopped Combs, who was behind the wheel of a blue SUV. An anonymous caller reported seeing a blue Ford Explorer weaving on Highway 52. Officer Grubs saw Combs, but her driving was just fine. She neither weaved nor committed any traffic violations. Officer Grubbs decided to stop her anyway once she had reached her destination….
Combs smelled of alcohol, and she was unable to pass the standard battery of field sobriety tests. Combs refused to undergo a breath test. Although she was arrested for driving under the influence of alcohol (DUI), the Surry County District Court tossed the criminal case because the officer violated the Constitution in stopping her illegally. The North Carolina Department of Motor Vehicles (DMV), however, was unwilling to let Combs off the hook. It revoked her driver’s license based solely on the illicitly obtained evidence. The DMV argued that the exclusionary rule does not apply to a civil proceeding. Combs argued that this was unfair. The trial judge told the DMV it could not base its action on illegal evidence, but the appellate court disagreed.
"Combs’s argument poses a fair question: how can law enforcement use evidence that was suppressed because of a Fourth Amendment violation to later revoke her driver’s license?" Court of Appeals Judge Richard Dietz asked. "The answer, according to several published decisions of this court, is that the exclusionary rule — a bedrock principle of criminal law — does not apply to license revocation proceedings."…
And so goes the slow death of the Constitution…
Thanks to Joe.
Sobriety checkpoints have been held to be an exception to the rule that law enforcement officers need probable cause to stop and, even if brief, detain a motorist in order for the detention to be constitutional.
Normally, police obtain that probable cause through witnessing a traffic violation, witnessing driving which would indicate drunk driving, or receiving an anonymous tip that a person may be driving drunk. Only then can law enforcement stop and detain a person.
Although officers at sobriety checkpoints do not have the probable cause usually required to stop a motorist, both the United States Supreme Court and the California Supreme Court have held that checkpoints are constitutional.
In Michigan Department of State Police v. Sitz, the United States Supreme Court held that the state’s interest in preventing drunk driving was a “substantial government interest.” It further held that this government interest outweighed motorists’ interests against unreasonable searches and seizures when considering the brevity and nature of the stop.
Three years before the decision in Michigan Department of State Police v. Sitz, the California Supreme Court in 1987 decided the case of Ingersoll v. Palmer and set forth guidelines to ensure the constitutionality of checkpoints in California. Those guidelines are as follows:
1. The decision to conduct checkpoint must be at the supervisory level.
2. There must be limits on the discretion of field officers.
3. Checkpoints must be maintained safely for both the officers and the motorists.
4. Checkpoints must be set up at reasonable locations such that the effectiveness of the checkpoint is optimized.
5. The time at which a checkpoint is set up should also optimize the effectiveness of the checkpoint.
6. The checkpoint must show indicia of official nature of the roadblock.
7. Motorists must only be stopped for a reasonable amount of time which is only long enough to briefly question the motorist and look for signs of intoxication.
8. Lastly, the Court in the Ingersoll decision was strongly in favor of the belief that there should be advance publicity of the checkpoint. To meet this requirement law enforcement usually make the checkpoints highly visible with signs and lights.
Without this last consideration, motorists would not know that there was an upcoming checkpoint to turn away from. However, because checkpoints are highly visible, motorists have the ability to turn away before reaching the checkpoint.
There are no laws that require you to drive through a checkpoint. Therefore it is perfectly legal to turn away from a checkpoint. But if you do turn away from a checkpoint, be sure that you do not break any traffic laws in the process like, say, an illegal U-turn.
Remember that an officer needs probable cause to stop and detain a motorist. By committing a traffic violation in their presence, they’ll have the probable cause to stop a motorist, not for suspicion of driving under the influence, but for the violation itself. However, once the officer has the motorist pulled over for whatever violation, you can bet that the officer will “observe the objective symptoms of intoxication” whether they’re present or not.