Category Archives: Breathalyzers

Breathalyzer Results Depend Upon Your Breathing Pattern

Want to trick that breathalyzer into a false reading? Not that difficult: just change your breathing pattern.

As I’ve indicated in literally hundreds of earlier posts, these breath machines which determine guilt or innocence in DUI cases are not exactly the reliable devices that law enforcement would have us believe. (See, for example, How Breathalyzers Work – and Why They Don’tWhy Breathalyzers Don’t Measure Alcohol and How Accurate Are Breathalyzers?.)  Yet another example of that unreliability is the fact that the results will vary depending upon the breathing pattern of the person being tested.

This has been confirmed in a number of scientific studies.

In one, for example, a group of men drank moderate doses of alcohol and their blood-alcohol levels were then measured by gas chromatographic analysis of their breath. The breathing techniques were then varied.The results indicated that holding your breath for 30 seconds before exhaling increased the blood-alcohol concentration (BAC) by 15.7%. Hyperventilating for 20 seconds immediately before the analyses of breath, on the other hand, decreased the blood-alcohol level by 10.6%. Keeping the mouth closed for five minutes and using shallow nasal breathing resulted in increasing the BAC by 7.3%, and testing after a slow, 20-second exhalation increased levels by 2%. "How Breathing Techniques Can Influence the Results of Breath-Alcohol Analyses", 22(4) Medical Science and the Law275.For another study with similar findings, see "Accurate Measurement of Blood Alcohol Concentration with Isothermal Breathing", 51(1) Journal of Studies on Alcohol 6.

Dr. Michael Hlastala, Professor of Physiology, Biophysics and Medicine at the University of Washington has gone farther and concluded:

"By far, the most overlooked error in breath testing for alcohol is the pattern of breathing….The concentration of alcohol changes considerably during the breath…The first part of the breath, after discarding the dead space, has an alcohol concentration much lower than the equivalent BAC. Whereas, the last part of the breath has an alcohol concentration that is much higher than the equivalent BAC. The last part of the breath can be over 50% above the alcohol level….Thus, a breath tester reading of 0.14% taken from the last part of the breath may indicate that the blood level is only 0.09%." 9(6) The Champion 16 (1985).

Many police officers know this. They also know that if the machine contradicts their judgement that the person they arrested is intoxicated, they won’t look good. So when they tell the suspect to blow into the machine’s mouthpiece, they’ll yell at him, "Keep breathing! Breathe harder! Harder!" As Professor Hlastala has found, this ensures that the breath captured by the machine will be from the bottom of the lungs, near the alveolar sacs, which will be richest in alcohol. With the higher alcohol concentration, the machine will give a higher — but inaccurate — reading.
 

Another Widespread Failure of Breathalyzers

The unavoidable fact is that breath-alcohol testing machines used by law enforcement are unreliable and inaccurate.  


Vermont’s DUI Breath Testing Program Under Fire

Montpelier, VT.  May 15 – A mistake in the software set-up on a breath analysis machine and whistleblowers’ complaints about unethical lab work threaten dozens of drunken-driving prosecutions in Vermont.

At issue are breath tests performed by a DataMaster DMT machine at a Vermont State Police barracks that authorities say wasn’t set up properly. Amid a broadening inquiry by two defense attorneys, dozens of criminal convictions could be reopened and a handful of civil license suspensions are being overturned.

Hundreds of other cases since 2008 could be in jeopardy because of problems with the state Department of Health’s maintenance of the machines that are used at police stations and barracks to test drivers arrested for suspected drunken driving…

(David) Sleigh and fellow defense attorney Frank Twarog obtained copies of complaint letters written last year by two Department of Health whistleblowers who said sloppy and unethical work by a lab colleague had been reported but unaddressed.

First reported on by the Burlington weekly Seven Days, the letters written by chemists Amanda Bolduc and Darcy Richardson were obtained by The Associated Press through a Public Records Act request.

The Health Department withheld from The AP 16 emails dealing with the DataMaster issue. Assistant Attorney General Margaret Vincent asserted attorney-client privilege or "attorney work product" as the reason.

The whistleblowers’ complaints allege that laboratory technician Steven Harnois tampered with DataMaster machines to get them to pass routine performance checks and kept records so badly that it compromised the chemists’ ability to testify in court about readings.

"I have concerns in his level of integrity and ethics," Bolduc said. "These concerns have been brought to the attention of the program chief on numerous occasions, and still the problem exists," she wrote. Whenever she raised concerns, her boss retaliated against her for it, she said.
 

From Wikipedia’s definition of "pseudoscience":  


Pseudoscience is a claim, belief, or practice which is presented as scientific, but which does not adhere to a valid scientific method, lacks supporting evidence or plausibility, cannot be reliably tested, or otherwise lacks scientific status.[1] Pseudoscience is often characterized by the use of vague, exaggerated or unprovable claims, an over-reliance on confirmation rather than rigorous attempts at refutation, a lack of openness to evaluation by other experts, and a general absence of systematic processes to rationally develop theories.
 

More Massive Breathalyzer Failures…

Ok, I’ve posted ad nauseum about how breathalyzers are inaccurate and unreliable.  See, for example, How Breathalyzers Work (and Why They Don’t.  And I’ve printed numerous articles in recent months about massive failures of the machines across the country, leading to questions concerning the wrongful convictions of hundreds of citizens.  See, for example, Attorney General Finds Widespread Breathalyzers; Police Shut Down All Machines (2 months ago),  Inaccurate Breathalyzers Cast Doubt on 1,147 DUI Cases in Philadelphia (just over a month ago),  More Defective Breathalyzers (hundreds of convictions in Ventura, CA – 2 weeks ago),  400 Wrongly Convicted in Washington: Faulty Breathalyzers.   

If you still think they were aberrations, read today’s news:
 

Santa Clara County DA Reviewing 865 San Jose DUI Cases After Breathalyzers Deemed Faulty 

San Jose, CA.  May 4 — A faulty breathalyzer used by San Jose police to arrest 865 DUI suspects could lead to drivers walking free — even if they were drunk behind the wheel, authorities revealed Tuesday.

The Santa Clara County District Attorney’s Office said it would undertake a special monthlong review to determine how many of the cases it would drop because San Jose police officers used the Alco-Sensor V breathalyzer as part of their field sobriety tests. The breathalyzers — one of the methods used by officers to determine whether to arrest DUI suspects — may have shown incorrect readings because of a manufacturer’s error that can cause condensation to build up in the tube…

San Jose officers had been using the device exclusively since November but stopped Friday after discovering the tests are not reliable. County crime lab officials, prosecutors and police began looking into the breathalyzers after discovering that Ventura County authorities began reviewing hundreds of similar cases more than a week ago.

An unknown amount of DUI cases in Palo Alto, where officers have been using the device since April 2010, could also be affected. The San Mateo County DA was not expected to know until Wednesday whether any cases there were suspect…

San Jose police said all 60 breathalyzers its officers used in the past five months were the defective Alco-Sensor V’s, until they sent them back to the manufacturer on Friday night. The department received a shipment of 30 older, nondefective models from the same company Saturday morning and has been using them since.

The company that makes the gray and yellow instruments, St. Louis-based Intoximeters, says on its website that the breathalyzer was approved by the U.S. government’s National Highway Traffic Safety Administration.
 

Still confident that the breathalyzers used in your city are accurate?  Accurate enough to convict your fellow citizens — beyond a reasonable doubt? 
 

More Defective Breathalyzers…

I’ve posted repeatedly in the past about the inaccuracies and unreliability of breath-alcohol testing machines.  See, for example, How Breathalyzers Work (and Why They Don’t), Why Breathalyzers Don’t Measure Alcohol and Report: Breathalyzers Outdated, Unstable, Unreliable.  

And news stories of massive breathalyzer failures keep rising to the surface. For a few recent examples, see Attorney General Finds Widespread Breathalyzer Inaccuracies; Police Shut Down All Machines (two months ago), Inaccurate Breathalyzers Cast Doubt on 1,147 DUI Cases in Philadelphia (less than one month ago), and 400 Wrongly Convicted in Washington: Faulty Breathalyzers (last year).      

And two days ago: 


Defective Breathalyzers Could Lead to Tossing Out Hundreds of DUI Convictions

Ventura, CA. April 19 – Hundreds of drunken driving convictions in Ventura County could be tossed out because a defect in some of the handheld Breathalyzer machines purchased earlier this year is causing inaccurate blood-alcohol readings.

The Ventura County District Attorney’s Office has sent memos to local attorneys saying that eight Intoximeter Alco-Sensor V breathalyzers have shown "erratic results" in blood-alcohol tests taken between Jan. 20 and March 31, according to Kevin Drescher, the supervising attorney with the felony unit.

The county purchased 128 of the devices, paying about $4,800 for each one.

Drescher said he didn’t know how many people charged with DUI were tested with the Alco-Sensor V during that time…

The District Attorney’s Office sent the memo to the Public Defender’s Office on April 15, said Chief Deputy Public Defender Monica Cummins. She said about 160 clients who were either convicted of drunken driving during this time, or have DUI cases pending, will be contacted by the office…

Cummins said the Public Defender’s Office will move to have the convictions dismissed in cases where there may have been blood-alcohol errors. But some people who were found guilty or pleaded guilty as a result of these false readings have already served jail time, paid thousands of dollars in fines and have done community service as part of the conviction, Cummins noted.

Also, harsher penalties are meted out to motorists who blow a .15 percent blood-alcohol level, said Cummins. In California, a blood-alcohol reading of .08 is considered the benchmark for being legally intoxicated.

"Truthfully, there is a whole cornucopia of problems that will likely arise," she said.The Alco Sensor V is manufactured by Intoximeters, Inc. of St. Louis, Mo.

According to the company’s website, "The ASV provides a simple, economical method of determining a subject’s breath alcohol concentration with evidential grade accuracy."

Company officials didn’t return calls.


Remember: these are just cases where the problems have been detected — and discovered by the media.  Do you really think that the thousands of other breathalyzers across the country are reliable?

It is a crime to drive a vehicle with a blood-alcohol level of .08% or higher — as measured by one of these fallible machines.  And how do you cross-examine a machine?  Yet in today’s "trial by machine", the reading alone is sufficient to find an accused guilty — beyond a reasonable doubt.  

Law once again trumps science…


(Thanks to Lane Scherer, an attorney in my law firm.)
 

Inaccurate Breathalyzers Cast Doubt on 1,147 DUI Cases in Philadelphia

As regular readers of this blog are painfully aware, over the past 7 years I’ve posted ad nauseum about the inaccuracy and unreliability of breath machines used in drunk driving cases.  See, for example, How Breathalyzers Work – and Why They Don’t, Breath-Alcohol Testing: "State of the Art"?Report: Breathalyzers Outdated, Unreliable, Unstable and "Close Enough for Government Work".  In fact, a few days ago I wrote about the Washington D.C. Attorney General throwing out dozens of DUI cases and investigating hundreds of others because of breathalyzer accuracy issues.  See Attorney General Finds Widespread Breathalyzer Inaccuracies; Police Shut Down All Machines.

For those doubters out there who thought this was just an isolated instance, consider today’s news:
  

Philadelphia To Review All Breathalyzer-DUI Cases From 15 Months 

Philadelphia, PA.  March 25 — A day after Philadelphia police announced that miscalibrated breathalyzers had compromised 1,147 drunken-driving cases, District Attorney Seth Williams  declared he would conduct a wholesale review of all DUI cases during the 15 months in question.

Philadelphia police file 8,000 to 10,000 drunken-driving cases each year, so the review announced Thursday by Williams’ office will involve a staggering amount of work that will take months to complete. 

Deputy District Attorney Edward McCann, chief of the Criminal Division, decided to launch the review, said Williams’ spokeswoman, Tasha Jamerson. Assistant District Attorney Lynn Nichols will lead a team of prosecutors and staff that will examine the cases from September 2009 to November 2010.

McCann is also implementing training on DUI cases for prosecutors that will emphasize recognizing potential problems with the Breathalyzer devices.

Finally, Jamerson said, the District Attorney’s Office will start doing its own calibration checks on Breathalyzers rather than depend solely on police certification.

The real bill will be some time in coming.

Besides the cost of reviewing thousands of DUI prosecutions and likely retrying some, the police and city could face civil lawsuits by people wrongly convicted – some of whom may have lost their driver’s license, their job, or their freedom.

Though police officials have a list of about 400 people affected by the miscalibrated machines, Jamerson said Williams had decided a full review was needed.

Though defense lawyers specializing in DUI cases said only two of the Police Department’s eight Breathalyzers had proved inaccurate, police said Wednesday that the total was four. Some court-system sources said that number was likely to increase.


Thousands of citizens are convicted every day of driving with a blood-alcohol level of .08% — based entirely upon the readings of these machines.  In a "trial by machine", the results of these devices legally establish a rebuttable presumption of guilt and are considered proof beyond a reasonable doubt.  See Whatever Happened to the Presumption of Innocence? and Trial by Machine


(Thanks to Ari Weiner.)