Company Behind Personal Breathalyzer Settles Dispute with FTC

Thursday, January 26th, 2017

I’ve never hidden my belief that if a personal breathalyzer can prevent a DUI, it should be used. That being said, it seems the company behind one of the most popular personal breathalyzers on the market has settled with the Federal Trade Commission (FTC) over false claims of its accuracy.

On the fifth season of ABC’s hit show “Shark Tank,” CEO and founder of Breathometer Inc., Charles Michael Yim, won over the “shark” investors with an invention called the “Breathometer” that allowed users to a detect their own blood alcohol content through their smart phone. The device attached to smartphone, would be blown into by the user, and the smartphone would calculate the BAC through an app. Yim’s pitch included the prospect that the Breathometer could prevent incidences of driving under the influence of alcohol.  The investors were so impressed with Yim’s invention that they offered up a $1 million dollar investment in exchange for a 30% stake in his startup.

The Breathometer became a consumer hit partly due to advertisements which claimed that the devices accuracy was backed up by government-lab grade testing. According to the FTC, sales for the Breathometer totaled $5.1 million.

However, more than three years after the episode aired, the FTC announced that Yim and Breathometer Inc. had settled a claim that the device “lacked scientific evidence to back up their advertising claims.” The complaint also alleged that the company knew that one variation of the Breathometer, the Breeze, “regularly understated” blood alcohol content levels.

While Yim and Breathometer Inc. did, in fact, settle with the FTC, they did not admit or deny the FTC’s allegations.

Under the settlement with the FTC, Yim and Breathometer Inc. are barred from making claims of the device’s accuracy unless the claims are supported through “rigorous testing.” The company also agreed to notify purchasers of the product to offer full refunds.

“People relied on the defendant’s products to decide whether it was safe to get behind the wheel,” Jessica Rich, director of the FTC’s Bureau of Consumer Protection, said in a statement. “Overstating the accuracy of the devices was deceptive — and dangerous.”

Breathometer recognized the settlement on its website by stating, “We feel it is important to clarify that this settlement does not undermine our achievements in creating quality consumer health devices.”

Kevin O’Leary, one of the Shark Tank investors, responded to the settlement by stating that the company proactively stopped the manufacturing of the Breathometer in 2015 before the FTC’s initial inquiry.

I stand by my assertion that a personal breathalyzer is a good way to prevent a DUI. Just do some research beforehand on the reliability of what you purchase. According to digitaltrends.com, the best personal breathalyzer for 2016 was the BACtrack S80 Professional Breathalyzer which will run you $125. According to the website, the best smartphone breathalyzer was the BACtrack Mobile Smartphone Breathalyzer at $98, the best portable breathalyzer was the BACtrack Keychain Breathalyzer Portable starting at $26, and the best budget breathalyzer was the VastarAB120 Professional at $20.

Better to spend $125 (at most) to prevent a DUI than to spend the thousands of dollars it will cost you if you are arrested on suspicion of a DUI.

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New Efforts to Push Roadside Marijuana DUI Test

Thursday, December 8th, 2016

In April of 2015 I wrote about Assembly Bill 1356, written by Assemblyman Tom Lackey from Palmdale, California, which would have allowed law enforcement to use a device similar to a breathalyzer that could detect the presence of marijuana and a number of other drugs in a driver’s system.

That bill however, failed to pass the Assembly Public Safety Committee the following May because of reliability concerns.

However, with the passing of Proposition 64 which allowed the use of recreational marijuana in California, Lackey who is a former sergeant with the California Highway Patrol, has introduced a new bill similar to that of the failed AB1356.

The newly proposed Assembly Bill 6 would allow tests using saliva samples taken from drivers suspected of driving under the influence. The test would let the officer know whether a driver has recently used a number of drugs including marijuana.

“The ballot initiative passed this year to legalize marijuana will result in more marijuana consumers on our state’s highways and roads,” Lackey said in a statement. “It is imperative that we invest in a broad spectrum of technologies and research to best identify marijuana-impaired drivers.”

The measure is supported by Chief Ken Corney, president of the California Police Chiefs Assn.

“Our federal partners have demonstrated the efficacy of oral fluid testing, and we look forward to utilizing the technology at a state level,” Corney said in a statement.

While the current devices referred to by Corney tests for the presence of drugs, it does not test for drug  quantity nor impairment of the driver.

There is an established correlation between blood alcohol content, specifically the legal limit of 0.08 percent, and alcohol impairment. Unlike alcohol, however, there is no such correlation between the presence of drugs and impairment. In other words, a person can have traces of drug in their system without being impaired by that drug.

Marijuana, for example, can stay in a person’s system for weeks following the smoking or ingesting of the marijuana and well after the person was intoxicated or stoned. The purpose of DUI laws is to prevent impaired driving, not to punish sober and unintoxicated people merely because they ingested drugs at some point in the past.

It is unclear how the presence of a drug may affect the subsequent arrest or DUI case since presence doesn’t necessarily mean impairment. Until we can establish a correlation with drugs including marijuana like we have with alcohol, namely the correlation between quantity and impairment, we shouldn’t be using pushing for laws like this.

Assembly Bill 6 will be brought up for a vote early next year.

 

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Challenging the Breathalyzer in a California DUI Case

Tuesday, September 20th, 2016

The breathalyzer is the most commonly used method for testing the blood alcohol content of suspected drunk drivers in California. Yet, both myself and Lawrence Taylor have written on more than a few occasions about the inaccuracies of the breathalyzer. Such inaccuracies include, but are not limited to an inability to differentiate between blood alcohol and “mouth alcohol,” elevated temperatures causing elevated BAC readings, and certain diets causing elevated readings.  

So can a person suspected of driving under the influence of alcohol in California challenge the accuracy of breathalyzers in court?

Notwithstanding the widely proven fact that breathalyzers are generally inaccurate, the California Supreme Court in 2013 ruled that scientific evidence refuting the accuracy of breathalyzers in general in California DUI cases are inadmissible.

The issue arose when a California trial court agreed with the prosecutor and excluded the testimony of a defense expert of Terry Vangelder who would have testified that breathalyzers, in general, can be inaccurate.

In 2007, California Highway Patrol pulled over Vangelder for allegedly going 125 miles per hour in San Diego. Although having admitted to consuming some alcohol, Vangelder passed field sobriety tests. Vangelder then agreed to a preliminary screening alcohol test (an optional roadside breathalyzer) which indicated that Vangelder’s blood alcohol content was 0.086 percent. Based on that, Vangelder was arrested and transported to the police station where he submitted to a chemical breath test (a required post-arrest breathalyzer). This breath test showed a blood alcohol content of 0.08 percent. Vangelder then submitted to a blood test which indicated that his blood alcohol content of 0.087 percent.

At trial, Vangelder called Dr. Michael Hlastala, a leading authority on the inaccuracies of breathalyzers.

"They are (inaccurate)," Dr. Hlastala testified before the trial judge. "And primarily because the basic assumption that all of the manufacturers have used is that the breath that [is] measured is directly related to water in the lungs, which is directly related to what’s in the blood. And in recent years, we’ve learned that, in fact, that’s not the case."

The judge however, did not allow the testimony and Vangelder was found guilty. Vangelder appealed and the appellate court reversed the decision in 2011. San Diego City Attorney, Jan Goldsmith, then appealed the appellate court decision arguing that such testimony would undermine Californi’s a per se law making it illegal to drive 0.08 percent blood alcohol content or higher.

Unfortunately, the California Supreme Court sided with Goldsmith.

“[T]he 1990 amendment of the per se offense was specifically designed to obviate the need for conversion of breath results into blood results — and it rendered irrelevant and inadmissible defense expert testimony regarding partition ratio variability among different individuals or at different times for the same individual," Chief Justice Tani Gorre Cantil-Sakauye wrote for the court. "Whether or not that part of expired breath accurately reflects the alcohol that is present only in the alveolar region of the lungs, the statutorily proscribed amount of alcohol in expired breath corresponds to the statutorily proscribed amount of alcohol in blood, as established by the per se statute."

The Court went on to say that, “Although  Dr. Hlastala may hold scientifically based reservations concerning these legislative conclusions, we must defer to and honor the legislature’s reasonable determinations made in the course of its efforts to protect the safety and welfare of the public."

I’m sorry, but I read that to say, “We recognize that science is important in determining the accuracy of breathalyzers, but we’re not going to undermine the legislature because of its good intent.”

Legislators are not scientists.

The effect of the decision was that people suspected of a California DUI can no longer offer evidence that breathalyzers, in general, are inaccurate. People suspected of a California DUI can, however, still challenge the accuracy of a particular breathalyzer.

Seems to me that the California Supreme Court doesn’t want accuracy in California DUI cases.

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Turning a Blind Eye to DUI

Monday, August 29th, 2016

Put yourself in the following situation: You and your friend, Vary Waysted agreed to go out to the local watering hole for the evening. This time, however, is Vary’s turn to be the designated driver. Half way into the evening, you notice Vary at the bar ordering a drink, but you do nothing. You know he shouldn’t have any alcohol because he was to be driving the both of you home, but still you do nothing. Sure enough, on the drive home Vary is stopped on the way home and arrested on suspicion of a California DUI.

You may be thinking to yourself that you would never allow that, that you would’ve spoken up and admonished Vary for not staying absolutely sober. But believe it or not, this is an extremely common phenomenon and it, unfortunately, is the cause of many drunk driving incidences and arrests.

Still don’t believe me? The Colorado Department of Transportation (CDOT) recently offered a brewery tour as part of a social experiment which demonstrated that turning a blind eye to drunk driving actually does happen.

Denver, Colorado is quickly becoming one of America’s epicenters for craft breweries. And a group of beer enthusiasts signed up to partake in tour of three of its breweries. Unbeknownst to the beer enthusiasts was that the transportation for the tour was a bus driven by an actor hired by the CDOT and the tour guide was also an actor.

With hidden cameras documenting the tour, the participants enjoyed their beers. None of the participants, however, seemed to care too much that their bus driver was enjoying beers right alongside them.

Fortunately, the driver was only drinking non-alcoholic beer. To drive the point home, the tour guide, who was similar to the driver in height and weight was actually drinking the alcoholic beer. After three 16-ounce beers, the tour guide had a blood alcohol content of 0.10 percent.

In a news release, the CDOT said "even small amounts of alcohol can land you a DUI."

"The experiment confirmed for us that many adults underestimate the dangers associated with driving after having a few drinks," CDOT spokesman Sam Cole said in a statement. "The participants never expressed concern that their driver was drinking and driving."

So why do so many people willfully choose to ignore information and situations which may be harmful to themselves or others?

As I’ve mentioned before, I have a background in psychology. While my focus on the law has long since overshadowed my focus on psychology, my interest does get piqued when psychology intersects with DUI law.

Humans turn a blind eye to information and situations which may be harmful to themselves or others when doing so is easier than facing the scary, hostile, and/or objectionable consequences of acknowledging and confronting the situation.

Let’s go back to our scenario. Instead of turning a blind eye, you confront Vary Waysted about ordering the drink when he was supposed to be the designated driver. The confrontation leads to an argument, but eventually Vary acquiesces to remaining sober. Although Vary doesn’t talk to you for the rest of the evening, both of you make it home safe and DUI-free.

Before turning a blind eye to DUI, ask yourself, “Would I rather have someone upset with me for a little while or run the risk of being involved in a DUI-related accident?”

 

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Temporary Tattoo Give BAC Reading

Tuesday, August 16th, 2016

Considering purchasing a personal breathalyzer? I’ve suggested it before as one of several ways to help prevent a DUI. What if knowing your blood alcohol content was a simple as slapping on a temporary tattoo? Well, researchers at the Center for Wearable Sensors at the University of California San Diego have created a removable electronic tattoo that detects the wearer’s BAC.

A team of researchers at the center were interested in a device that offered continued BAC monitoring which typical breathalyzer do not offer. The researchers also wanted to develop a BAC detector that could not be skewed by factors other than blood alcohol such as mouthwash, acid reflux, or alcohol residue in the mouth all of which affect typical breathalyzers.

The tattoo is similar to other devices sometimes mandated by the court as a condition of a California DUI sentence or a condition of being release without having to post bail pending the outcome of a California DUI case. At least in Southern California, the device is called a SCRAM device which passively tests “insensible” sweat, or trace amounts of sweat, excreted from a person’s skin. The SCRAM device is rather bulky and can be relatively expensive.

The tattoo, however, emits a drug called pilocarpine, which generates sweat. The tattoo then tests the sweat excreted from the skin as a result of administration of the pilocarpine for ethanol alcohol through sensors which are attached to the skin. However, unlike the SCRAM device, the temporary tattoo and sensors are attached to a flat, flexible circuit board that is about an inch in length. The circuit board then transmits the information to the wearer’s phone via Bluetooth.

One of the project scientists and professor of nanoengineering, Joseph Wang, has said that the tattoo device could be made even smaller than its current form with continued engineering. He added that, unlike the SCRAM device, the tattoo could cost a mere pennies to produce.

“We developed a new tattoo-based wearable alcohol sensor that enables real-time monitoring of blood alcohol level, overcoming limitations of conventional non-invasive alcohol sensors,” said Jayoung Kim, a co-author and PhD student at UCSD.

The tattoo comes at a time when law makers and law enforcement agencies are actively seeking more reliable and efficient ways to detect blood alcohol content.

Earlier this year, the National Institute on Alcohol Abuse and Alcoholism, which is part of the National Institute of Health, awarded $200,000 to San Francisco-based BACtrack for developing a bracelet-type device as the winner of its Wearable Alcohol Biosensor Challenge. BACtrack has produced a number of personal breathalyzers for consumer use.

Keith Nothacker, BACtrack’s founder and chief executive officer, said that the firm is working on bringing the winning sensor, called “Skyn,” to the consumer market for around $99 and offer a version that is integrated into a band for the Apple watch.

In a press release, Joseph Wang said that the primary purpose for developing the BAC-detecting temporary tattoo was to prevent drunk driving.

“Lots of accidents on the road are caused by drunk driving. This technology provides an accurate, convenient and quick way to monitor alcohol consumption to help prevent people from driving while intoxicated,” Wang said.

Hopefully soon the temporary tattoo will be available for consumer use. And maybe the BAC detecting tattoo will prevent, not just drunk driving, but also someone from getting so drunk that they get a real tattoo that they might regret the next morning.

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