A few months ago I attended probably the best DUI seminar I have ever attended. It was held at Harvard University Law School and put on by the National College for DUI Defense, of which I am a member. I attend four to six DUI seminars across the country on an annual basis to keep up with the latest defenses in DUI cases and to hone my trial skills. At this year’s conference we studied why Breath Tests can be so wrong, how to effectively use expert witnesses, how to deal with problem witnesses, how to cross exam field sobriety test witnesses, how to prepare effective opening and closing statements, tips and tools to use in selecting a jury, and why we fight! We had small group practice sessions where we were videotaped and critiqued by the best of the best DUI lawyers in the country. I wanted to pass along a summary of one of the sessions I attended that dealt with why Breath Alcohol Tests can be so wrong!
WHY BREATH TESTS CAN BE SO SO WRONG!
There are dozens of reasons why a breath test result can be false. A false breath test can lead to an innocent person being convicted of the devastating crime of DWI/DUI. I would like to summarize seven points of error that can exist in any breath test on any breath testing machine. There is a lot of complicated science involved in each of these points that I will have to gloss over, but if you want to know more just give me a call. The following are seven points of potential error:
1. Machine Error: All measuring devices have a margin of error. Ever step on a scale 3 or 4 times to get the lowest weight possible?! Bottom line with breath testing is that 44.5% of all tests will be above the true value. 44.5% of all tests will be below the true value. Only 11% of the time will a test be right or accurate. This is just basic scientific fact applicable to most scientific tests. The actual acceptable error rate (not counting the rest of the possible errors that will follow) can be as high or low as a 10% error.
2. Breathing Pattern Error: A subjects manner and mode of breathing just prior to providing a breath sample can significantly alter the concentration of alcohol on the breath. Hyperventilation prior to a test can result in a 20% lower alcohol reading. (Hyperventilate prior to blowing!!!) Holding ones breath for a short time prior to blowing can increase a breath result by 15%. I have actually had a few clients tell me the cops have told them to hold their breath prior to blowing. Those cops who do that are dirty bastards in my opinion and don’t deserve to wear a badge.
3. Core Body Temperature: The state assumes we have a breath temperature of 34 degrees centigrade. That number is based on a study done in 1950 with only 6 subjects in the study. The truth is the average person breath temperature is 35 degrees centigrade (from a 1996 study involving 700 subjects). Of course if one is running a fever the breath temperature can be significantly higher than 35 degrees. For every degree centigrade above the assumed 34 degrees that the state uses, there will be an 8.6% error in the breath test. Only one state, Alabama, measures the subjects breath temperature and adjusts the reading. Most countries in Europe do it.
4. Hematocrit Error: Hematocrit, in layman’s terms, is the percentage ratio of water to solids in the blood. The higher the hematocrit, the higher the breath alcohol reading. With breath tests, normal variations in hematocrtis in test subjects can produce errors in results in the 10% to 14% range.
5. Partition Ratio Error: Partition ratio is the ratio of ethanol molecules in the blood compared to what is found in the lung. You do not become intoxicated from alcohol found in your lungs but that is what breath testing measures. The state assumes that for every one ethanol molecule found in your lung air you will have 2100 in your blood. The truth is that studies have proven that an individuals partition ratio can be as low as 900 to 1. That is extreme but 1500 to 1 can be found in a small but very significant amount of the population. In a trial, it was like pulling teeth, but I finally got our states expert to admit that if my client had a partition ratio of 1555 to 1 instead of the assumed 2100 to one his .11 reading on the Intoxylizer would have been a .07!! The state does not measure anyone’s partition ratio. A very significant portion of the population is getting screwed on a breath test based just on this error. If a 900 to 1 partition ratio existed on a .10 breath test, the real level in that person’s blood would be only a .052!! I should mention that 80% of the population have a partition ratio greater than 2100 to 1, but do you think it is ok that the other 20% are getting a falsely high result?
6. Mouth/Stomach Alcohol Error: The machines are supposed to measure alcohol coming from the subjects lungs. Often times the breath sample can be contaminated by alcohol coming from the mouth or the stomach. Remember ethanol molecule from the lung are being multiplied 2100 times to correlate what is found in the blood. To get to the lungs it has to go through the stomach, intestines, into the blood stream and then into the lungs. Alcohol coming right from the mouth or stomach is wrongfully multiplied and false results are given. People with GERD (gastroesophogeal reflux disease) or Acid Reflux can really be given a high false reading. The state says the machine can always detect alcohol coming from the mouth or the stomach, but that is so intellectually dishonest that it turns my stomach (pardon that but I had to say it).
7. Extrapolation Error: The math involved in breath testing is extreme. Here is an example of what can occur. The machine reports results in grams of alcohol per 210 liters of breath. If a person blows 2 liters of air the machine will have to multiply the 2 liters by 105. It will also multiply the amount of alcohol by the same number. Let’s assume a 150 pound man has a an alcohol potential of .026 per drink (the more you weigh the more this number (.026) goes down). He blows 2 liters of air in the machine. The machine makes a small mistake in the amount of 1/100th of a drink before it extrapolates to 210 liters. The machine multiples by 105 to get to 210 liters, thus overestimating the man’s number of drinks by one drink (a .026 error). This means if his result read as a .10 he really should have been a .074!
These seven points of error are independent of one another. If you combine the realistic potential error rate of the seven points of error, you could get a false reading plus or minus a whopping 47.6%!!!! My hope for you if you ever get stopped and are required to take a breath test is that your result is underreported rather than overreported. Breath testing evolved for the convenience of the government. It is quicker and less involved than a blood test. The government knows some people are getting falsely convicted. But isn’t it better that some innocent people are convicted so we can save time and expense of finding out truly how much alcohol is in a person’s blood?
I focus my practice on defending those accused of DUI. It is an uphill battle. I often feel alone out there. The reality is that I am not alone. I have the backing of the National College of DUI defense. We are lawyers from across the country who have banded together to support each other and learn from each other. We are united in fighting DUI cases. In a future newsletter, I am going to show you how many exceptions to our Constitution have occurred in the name of convicting people of DUI’s. The roadblock, for example, came about because of DUI’s. What was allowed in the name of fighting DUI’s will soon be extended to more and more things. Someday, maybe soon, the government will be able to pull you over for any reason at anytime in the name of national security. I just hope when they do you haven’t had a drink or two and end up getting a false result on a breath test!
Michael C. Tillotson
You can receive a FREE consultation with Mike if you have been arrested of DUI/DWI in Virginia by contacting our office today. Michael C. Tillotson – DUI Defense Attorney in Virginia. Office 757.969.5197 http://www.VaDUILawyer.com or email at info@vaduilawyer.org
