ARE WE PROTECTED BY THE “PROTECTIONS” ON THE BREATH TEST MACHINE?
In a DUI case the government gets to admit a certificate of analysis to prove our clients were under the influence of alcohol. It is an easy job for them. The officer presses a button on the machine, has the individual blow twice, then the machine prints a certificate with a number. That number is viewed by the courts as the gospel truth of what was actually in a person’s blood. The government admits there are many things that can cause false results but says the machine is equipped with safeguards to protect against false readings. Today I would like to discuss some of those “safeguards.”
Radio Frequency: Years ago people got false results on breath tests due to radio frequency interference. The Intoxilyzer uses infrared light (an energy source) to cause a chemical vibration of the molecules inside the breath chamber. The machine is basically looking for three electromagnetic frequencies to occur simultaneously. When these are detected the machine says it is ethanol. It begins calculating how much ethanol is in a person’s breath by measuring the number of these simultaneous frequencies it sees. Well, radio frequency can create havoc with a breath test. It wasn’t until defense attorneys argued and proved time and time again that people were getting false results due to radio frequency interference did the manufactures of breath testing machines do something about it. They installed a wire that is wrapped around the breath tube to pick up radio frequency. When it picks it up, the machine will not produce a result but rather will print a certificate that says RFI (radio frequency interference). Well guess what!! This protection was installed over 13 years ago on the machines that are in use now in Virginia. The machines are never tested on an individual basis to see if the radio frequency protection is even working anymore. As a result, they have never tested them against any new technology. Think of all the changes in technology (cell phones, pda’s, etc.) that exist. This is yet another example of intellectual dishonesty that goes on by our government. They tell the courts we are protected from rfi but never test to see if the protection is still working after 13 years or whether it works against new technology. Why do they not test these machines? It is because very few lawyers in the Commonwealth have the ability to challenge them in court.
Ambients: Ambients are chemicals in the air that the machine can read as ethanol. Actually, the Intoxilyzer can misread over 1000 chemical substances as ethanol!! During the breath testing process, the machine is designed to suck in air from the room on five separate occasions and read it to determine if any ethanol molecules are getting in from the room air. This is called an “air blank.” This can occur if someone spilled alcohol on their clothing or if there were chemicals in the room. If the machine reads something during an air blank it will either make an adjustment to the final reading, which no one sees or if it is too much it will cause the machine to print out AMBIENT DETECTED on the Certificate of Analysis. Guess what folks! Thirteen years of use and our machines are not tested on an individual basis to see if the ambient detection system still works. Does that make you feel protected?
Interferents: Interferents are chemical compounds that can be misread as ethanol. As mentioned the machine can read over 1000 chemical compounds as being ethanol. Few of those are found in the human body. After defense attorneys proved time and time again that the machine could give false results due to other chemicals being read as ethanol, the government responded by placing two….THAT’S TWO….filters to check for two common interferents. They check for acetone and toluene. These can get into our system from working around paints and paint thinners, amongst other things. But there are other chemicals such as Butanol that can get into someone’s system that is read as ethanol. Additionally, diabetics in a hyperglycemic can produce ketones in their body. These too can be read as ethanol by the Intoxilyzer 5000. The government adds just enough protections to be able to make an intellectual dishonest claim that they are protecting people against false results!
The more I learn and the more I defend DUI cases, I am astounded at the political reality that exists. Judges are afraid, the Commonwealth’s scientists are intellectually dishonest, and the prosecutors are clueless to how fallible the Intoxilyzer is. Innocent people are convicted solely for the sake of convenience and for the appearance of being tough on DUI’s. No one is for people driving a car while they are intoxicated. However, we should still be a country where the burden of proof is on the government to prove citizens are, beyond a reasonable doubt, guilty. Unfortunately, once there is a result printed on a certificate by “dated, unstable, unreliable Breath Alcohol instrumentation used by police officers throughout the Commonwealth to certify whether a driver is or is not impaired” (direct quote from Virginia Department of Forensic Science in a request for funding for new machines!!!) the burden shifts to the Defendant to prove his innocence beyond a reasonable doubt. This is not how it should be in America!
I continue to be dedicated to providing our clients the best, most thorough representation possible in their DUI case. I explore all technical, medical, legal, and scientific defenses available to those accused of a DUI. I hope that this is of value to all of us. Thank you for reading this newsletter and entrusting your clients to our office.
Michael C. Tillotson, Esq.
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 email@example.com