Can you beat a Breathalyzer
As part of an extended crackdown, Georgia and other states began passing much tougher DUI laws in the mid-1990s. Reducing the BAC level from .10 to .08 got most of the attention. Utah recently became the first state to lower the BAC limit again, to .04.
Another, under-the-radar change put the Breathalyzer at center stage. Georgia lawmakers passed a per se law. Defendants who have a BAC above the legal limit, which is normally .08, are now guilty as a matter of law. Indeed, in many jurisdictions, the conviction rate in chemical test cases is over 80 percent.
As will be shown below, it’s pretty much impossible to invalidate the Breathalyzer results altogether. However, it’s usually possible to call the results into question, especially in a .08, .09, or other borderline BAC test case. If a criminal defense attorney creates reasonable doubt in the mind of one juror, that may be enough to secure a not-guilty verdict at trial.
How the Breathalyzer Works
At some point in most test cases, the prosecutor calls a Breathalyzer technician to the stand. This technician uses sophisticated terms like electron conversion and fuel cells. The goal is to convince the jury that the Breathalyzer is a scientific marvel.
This device is rather advanced. Ethanol particles in the breath trigger an electrochemical reaction. The stronger the charge, the more ethanol particles there are in the breath. In only a second or two, the Breathalyzer converts the breath alcohol measurement into an accurate Blood Alcohol Concentration measurement, which is what the statute requires.
At least, that’s how it works in theory. The reality is sometimes a little different.
Today’s Breathalyzer is fundamentally the same machine as the Drunk-o-Meter, which appeared in 1937. Essentially, the test subject blew up a balloon. If the gas inside the balloon was a certain color, it meant the subject was probably intoxicated. What if your doctor used an X-ray machine from the 1930s to determine if you had a cancerous tumor? Would you trust the result with no reasonable doubt whatsoever, or would you ask for a second opinion?
Also, note that the Breathalyzer does not measure blood alcohol. It measures breath alcohol, and then uses that figure to estimate the blood alcohol level. In other words, there is an additional step. Many Breathalyzer techs would be hard-pressed to explain this process to the jury.
Is the Officer Qualified?
Most officers receive Breathalyzer training at a police seminar. There, they learn how to do things like ensure the device is calibrated properly, prepare the device for use, instruct the defendant, and evaluate the result.
Not all Breathalyzers are the same. The smartphone in your purse right now bears little resemblance to the one you had two years ago. Similarly, the Breathalyzer that the officer used may be much different from the one s/he trained on several years previously. That’s especially true if the officer recently transferred from another agency or another jurisdiction.
This issue comes up quite frequently in STEP campaigns. Guidelines for Selective Traffic Enforcement Campaigns vary greatly. But generally, supervisors pull officers from their normal duties and redeploy them as traffic officers in a certain part of town. Then, these officers write as many citations as possible for a particular offense or infraction.
Not all Breathalyzers are the same, and not all officers are the same. For example, an officer who normally works the vice squad may not be a very good DUI officer. When supervisors press these individuals into service, the quality of the prosecution sometimes suffers.
Lack of technical competency is probably not grounds to exclude the Breathalyzer result. However, if the jury believes that the officer’s qualifications are shaky, they are more willing to embrace the idea that the results are inaccurate. This is a multi-step process which continues in the below discussion.
Some Breathalyzer Flaws
The complex chemical process mentioned above sets the stage for several Breathalyzer flaws. These issues are highly technical, but they are also common-sense enough for the jury to understand. That’s a very good combination in this context.
Many Breathalyzer flaws, such as sucking on a penny, are little more than old wives’ tales. They have little or no scientific basis. However, some shortcomings have a legitimate basis. They include:
- Mouth Alcohol: Intoxilyzer 9000 manufacturers recommend that test administrators observe subjects for at least twenty minutes prior to the test. Courts have held that officers have no duty to watch defendants closely for this period. So, there is no way to tell if the defendant belched, vomited, or burped during that period. If any of these things happen, ethanol particles from the stomach flood the mouth. That could skew the results.
- Acetone: Most people naturally have low levels of this substance in their bodies. Acetone is an acid that’s sort of like fingernail polish remover. Certain individuals, such as hairdressers, smokers, and diabetics, have higher-then-normal acetone levels. The Breathalyzer registers acetone as ethanol. At low levels, it is no big deal. But at higher levels, the variance could be significant.
- Unabsorbed Alcohol: The body absorbs 80 percent of alcohol through the small intestines. This absorption process is much slower than the stomach-to-blood-to kidneys route. So, if the defendant had anything to drink within the last hour or so, the defendant’s actual blood alcohol level may be lower than the Breathalyzer estimate.
To drive home these flaws with the jury, many local criminal defense attorneys partner with chemistry graduate students at Georgia State, Georgia Institute of Technology, or another nearby campus. These students are often willing to provide expert testimony for little or no fee. Even an advanced student is much more qualified than the prosecutor’s Breathalyzer tech. So, the counter-testimony carries considerable weight with the jury.
A final note here. The jury usually cares little about technical and scientific issues unless the jury cares about the defendant. So, such arguments are most effective in first DUI prosecutions with relatively low BACs. If the defendant has any prior convictions, or there are other aggravating factors, the jury will probably care little about acetone levels and so on.