You may have heard “if you’ve been drinkin’ then suck on Lincoln.” This Breathalyzer trick is partially true. Copper reacts with ethanol and skews Breathalyzer results. Back in the day, a penny was mostly copper, so until the 80s or even the 90s, this trick often worked. But in 1982, the U.S. mint changed the coin’s chemical composition. A post-1982 penny is only 2.5 percent copper. Now, the suckin’ on Lincoln trick still works, if the subject has a mouthful of pennies. Even the most lackadaisical cop probably won’t let a defendant get away with that.
This trick may not work, but it illustrates some common Breathalyzer flaws, which are examined in detail below. If a Marietta criminal defense attorney gets the test results thrown out of court, prosecutors must rely on flimsy circumstantial evidence to prove intoxication. At the very least, an attorney can raise these flaws with jurors, who then decide for themselves if that particular Breathalyzer was a reliable scientific instrument.
Reasonable Suspicion for the Stop
In some cases, the judge throws out Breathalyzer results without looking at the results themselves. Frequently, officers collect samples illegally. In that situation, the result is irrelevant.
Typically, officers must have reasonable suspicion to detain motorists. Reasonable suspicion is basically an evidence-based hunch of criminal activity. Over the last fifteen years, the Supreme Court has watered down this rule. However, in some cases, prosecutors are hard-pressed to establish reasonable suspicion.
Assume Officer Lucy, who is on regular patrol, sees Jack run a stop sign. She pulls him over. When she gets to his vehicle, Jack’s eyes are bloodshot, and she smells alcohol. She asks the infamous question “Sir, have you been drinking?” She doesn’t like Jack’s answer and makes him perform field sobriety tests, which he fails. This stop and arrest are most likely legal, especially in the current environment.
Now assume Officer Lucy, who is on DUI patrol, sees Jack leave a sports bar late at night. She follows him for about a half mile and then pulls him over when he changed lanes without signaling. Then, it’s evidence of consumption, “have you been drinking,” and failed FSTs.
At least two things might be wrong with this stop. Officer Lucy was on DUI patrol. Her supervisor told her to patrol a certain area and issue as many DUI citations as possible. When you’re looking for something, you generally find it. Publishing heiress Patty Hearst, who is an expert in this area, said “trouble is very easy to find when you go looking for it.”
Additionally, at first, Officer Lucy had a hunch Jack was intoxicated, even though she had no evidence. Reasonable suspicion is an evidence-based hunch, not a hunch the officer later verified with evidence.
DUI checkpoints are an exception to the reasonable suspicion requirement. Officers don’t need reasonable suspicion to detain motorists at DUI checkpoints, if the roadblock meets all legal requirements.
Improper Calibration
Many defendants get anxious when a Marietta criminal defense lawyer allows a Breathalyzer tech to list this device’s specifications in nauseating detail. But there’s a method to this madness. The more bells and whistles a device has, the more sensitive it is, and the more maintenance it needs.
Breathalyzer maintenance is a serious issue. In 2023, a Massachusetts judge ruled that, between 2011 and 2019, police officers used improperly calibrated Breathalyzers. That ruling could affect as many as 27,000 DUI cases.
Regular maintenance is important, but it isn’t enough. Outside temperatures change rapidly in Georgia, especially during certain months. If no one calibrated a Breathalyzer to account for a dramatic temperature rise or drop, it’s like no one calibrated it all.
On a similar note, body temperature also affects Breathalyzer results. A couple of degrees might elevate the BAC result by a couple of tenths of a point.
Scientific Issues
A Marietta criminal defense lawyer can lose round one (probable cause) and round two (improper calibration), and still win the fight. Scientific flaws make a really big difference in a .08, .09, or other borderline BAC level.
- Mouth Alcohol: The “suck on Lincoln” trick changes the detectable amount of mouth alcohol. If the subject burped or belched prior to the test, mouth alcohol levels go through the roof, since ethanol particles in the stomach gush into the mouth. This flaw might be the most effective one. Georgia’s mandatory observation period isn’t rigidly enforced.
- Unabsorbed Alcohol: Most beverages take the short way through the body, from the mouth to the stomach to the blood. So, breath levels accurately reflect blood levels. But the liver processes alcohol after it goes through the stomach and before it gets to the blood. Therefore, recent alcohol consumption skews the result.
- Ketone Level: Certain people, mostly smokers and diabetics, have abnormal levels of this enzyme, which basically converts sugar to energy. Most Breathalyzers read ketone as ethanol, since these particles are chemically similar. Therefore, people with high ketone levels also have high ethanol levels, even if they haven’t been drinking.
Frequently, a Marietta criminal defense lawyer partners with a degreed chemist, or at least a chemistry grad student, to drive home these flasks with jurors. A well-credentialed chemist has a lot more credibility with jurors than a police Breathalyzer tech who probably learned pretty much everything s/he knows in one weekend.
Blood tests are much more reliable than breath tests. But officers rarely order blood tests. We mentioned that the Supreme Court has diluted some criminal procedure rules. Sometimes, however, the Supremes do defendants a favor. In 2016, the Court ruled that police officers need search warrants to extract blood samples. Most officers rarely bother with this additional step.
You cannot trick a Breathalyzer, but you can beat a Breathalyzer. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. Convenient payment plans are available.
