The Breathalyzer Tyranny

[JohnStOnge]

Those of you who know me from elsewhere know I have railed against the irrational witch hunt against "drunk" driving. Recently someone close to me got popped for DUI under circumstances in which I think there is plenty of reasonable doubt as to whether or not they are really guilty. As a result I started looking into breathalyzers. The reason is that the subject "blew" a result close to but above 0.08 and I knew that the result had to be an estimate rather than a direct measurement of blood alcohol concentration (BAC). If anything, the situation is worse than I thought it would be.

Right off the bat, I found that it's generally accepted that breathalyzers have a "margin of error of +/- 0.01. So if you were to blow a 0.083, for example, all that shows is that your BAC was in the range of 0.073 and 0.093. Most people don't think about such things. As a result, it is virtually certain that large numbers of people, probably millions, have been either convicted of DUI or forced into pre trial diversion arrangements when their BACs were less than 0.08. And how bad it is depends on what is meant by "margin of error." I'm trying to find information on that.

That's bad enough, but it may be worse. It is alleged that cops intentionally bias the results. You can see such an allegation at http://www.duiblog.com/2004/11/27/how-t ... athalyzer/. Here's the key quote:

"Dr. Michael Hlastala, Professor of Physiology, Biophysics and Medicine at the University of Washington has gone farther and concluded:

'By far, the most overlooked error in breath testing for alcohol is the pattern of breathing….The concentration of alcohol changes considerably during the breath…The first part of the breath, after discarding the dead space, has an alcohol concentration much lower than the equivalent BAC. Whereas, the last part of the breath has an alcohol concentration that is much higher than the equivalent BAC. The last part of the breath can be over 50% above the alcohol level….Thus, a breath tester reading of 0.14% taken from the last part of the breath may indicate that the blood level is only 0.09%.'9(6) The Champion 16 (1985).

Many police officers know this. They also know that if the machine contradicts their judgement that the person they arrested is intoxicated, they won’t look good. So when they tell the arrestee to blow into the machine’s mouthpiece, they’ll yell at him, "Keep breathing! Breathe harder! Harder!" As Professor Hlastala has found, this ensures that the breath captured by the machine will be from the bottom of the lungs, near the alveolar sacs, which will be richest in alcohol. With the higher alcohol concentration, the machine will give a higher — but inaccurate — reading."'


That one hits home with me, because that's exactly what the cop that did the breathalyzer test did to the person close to me. He told him that if he stopped exhaling it would constitute a "refusal" and made him strain to empty every last bit of air at the end of his breath.

Finally, there's this kind of thing:

"In an ongoing DWI case in New Jersey, where the source disclosure issue escalated to the state's Supreme Court, breathalyzer company Draeger was forced to submit its code for independent review. The software review summaries published by the expert source code auditors indicate that the underlying software that powers the Draeger breathalyzer exhibits potentially serious flaws.

Two reviews have been published. One review, which was conducted by SysTest, was commissioned by Draeger. The second review, conducted by Base One, was commissioned by the defendant. The reviews differ in scope and offer different conclusions, but they both agree that the code falls below industry-standard best practices and that it contains bugs."

That's from http://arstechnica.com/tech-policy/news ... review.ars .

We have a situation, fueled by the anti "drunk" driving hysteria, in which a horribly imprecise and often inaccurate instrument that estimates but does not measure BAC is being used by police officers who frequently endeavor to bias the results is being used to crucity many people who are not really guilty. It's a huge outrage that nobody even notices because it's so "in" to stand on the stump and declare how bad "drunk" driving is.

[dbackjon]

While I don't agree completely on the witch hunt factor as a whole, I do agree that this has been taken to the extreme.

While I don't drink/drive, if I was in the situation, I would insist on a blood test, not a Breathalyzer.

[JohnStOnge]

While I don't agree completely on the witch hunt factor as a whole, I do agree that this has been taken to the extreme.

While I don't drink/drive, if I was in the situation, I would insist on a blood test, not a Breathalyzer.

My understanding it that, in most if not all States, if they will allow you to be blood tested you will have to pay for everything associated with it including lab costs and chain of custody arrangements. To me, if we were really sticking to the "innocent until proven guilty" thing we've all been told is the standard in this country, government would be required to use blood sampling to establish BAC. But we've apparently decided that the "drunk" driving witch hunt is worth having some very large number of people falsely convicted and having their lives turned totally upside down.

[OL FU]

While I don't agree completely on the witch hunt factor as a whole, I do agree that this has been taken to the extreme.

While I don't drink/drive, if I was in the situation, I would insist on a blood test, not a Breathalyzer.

Not that I am concerned about it, but can you do that

[CID1990]

As a former cop, I can tell you what any lawyer worth his salt will tell you:

Never blow.

That being said, BAC is evidentiary, but it does not carry more weight than, say, acting like a drunk on the in-car video. I did not do a lot of traffic, and when I did pop someone for DUI, they were very drunk, or it was the result of an accident. Of all the DUIs I had over 17 years, I'd say that maybe only about 25% of them actually took the Datamaster. Of those who did not blow, I had about a 90% conviction rate. That is because they were either falling down drunk and this was obvious on the video, or they pled guilty. The BAC is usually just one piece of evidence in a successful DUI prosecution. If the person is truly DUI, then there will be convincing evidence from the on scene video, the video of the booking process, attention to detail by the officer, and other circumstances such as an accident, etc.

If someone gets convicted on the BAC test alone, then my question would be, "Why did you submit to the damn test?" If someone is truly not "drunk," then they should have the good sense to refuse the BAC test. Cases without BAC and video of an obvioulsy drunk person never go to trial and usually get either dismissed or pled down to something minor like careless driving.

[93henfan]

if I was in the situation, I would insist on a blood test, not a Breathalyzer.

Sounds like the way to go. What does the law say? Are there states where you must submit to a breathalyzer and the breathalyzer is the only method of measurement allowed? That would be a real perversion of justice, IMO.

I'm not a fan of any measurement system that estimates, when an estimate is not good enough. I've seen first hand, for instance, how inaccurate polygraphs are. Anyone who thinks those things are accurate is delusional, and there's no "range" involved with those.

[OL FU]

As a former cop, I can tell you what any lawyer worth his salt will tell you:

Never blow.

That being said, BAC is evidentiary, but it does not carry more weight than, say, acting like a drunk on the in-car video. I did not do a lot of traffic, and when I did pop someone for DUI, they were very drunk, or it was the result of an accident. Of all the DUIs I had over 17 years, I'd say that maybe only about 25% of them actually took the Datamaster. Of those who did not blow, I had about a 90% conviction rate. That is because they were either falling down drunk and this was obvious on the video, or they pled guilty. The BAC is usually just one piece of evidence in a successful DUI prosecution. If the person is truly DUI, then there will be convincing evidence from the on scene video, the video of the booking process, attention to detail by the officer, and other circumstances such as an accident, etc.

If someone gets convicted on the BAC test alone, then my question would be, "Why did you submit to the damn test?" If someone is truly not "drunk," then they should have the good sense to refuse the BAC test. Cases without BAC and video of an obvioulsy drunk person never go to trial and usually get either dismissed or pled down to something minor like careless driving.

Thanks er not for me of course. I will pass the info along to citdog

[CID1990]

While I don't agree completely on the witch hunt factor as a whole, I do agree that this has been taken to the extreme.

While I don't drink/drive, if I was in the situation, I would insist on a blood test, not a Breathalyzer.

Not that I am concerned about it, but can you do that

In SC, you can request a blood test, but refusal to submit to the BAC is still refusal in spite of the offer to take the blood test.

Keep in mind that the entire DUI law in SC was written by DUI defense lawyers (ridiculous) like Tim Kulp, and it is full of nice money-making loopholes for attorneys. They don't want you to be able to request a blood test, because if you do, and you are shown to be below the legal limit, then there's no case. In order for you to need their services, you need to at least run afoul of the "implied consent" rule, meaning that you had your license suspended for 30 days for refusing to blow. Then they can at least go arguee for you at the suspension hearing to get your license re-instated for work. Then they can continue your case for a year or so, charging you for each appearance. Then they get the charge written down to careless or dimissed and the schmuck they were representing thinks they walk on water because of it.

[JohnStOnge]

If someone gets convicted on the BAC test alone, then my question would be, "Why did you submit to the damn test?" If someone is truly not "drunk," then they should have the good sense to refuse the BAC test. Cases without BAC and video of an obvioulsy drunk person never go to trial and usually get either dismissed or pled down to something minor like careless driving.

Because the police browbeat them into doing it by telling them a refusal will get them into all sorts of trouble. And in my State, my understanding is that it will. At the very least they'll lose their license because they agree to take the test in order to keep it when they get it.

If the rule is that the BAC can't be 0.08 or more, the government ought to be required to prove that the BAC is 0.08 or more. I'm sorry, but neither a police officer nor a judge is qualified to estimate somebody's BAC based on how they perform on a video. Nobody is. And they shouldn't be using Breathalyzers because they're too imprecise and there are too many sources of error.

[dbackjon]

From what I understand, you can still get a DUI if your BA is below .08 if you are visably impared.

[JohnStOnge]

If someone is truly not "drunk," then they should have the good sense to refuse the BAC test. .

Now think about what you're saying there. Someone is confident that they are not drunk. They don't understand the problems with Breathalyzers. Why would they refuse the test if they think they will pass?

Take my case. In the past I've actually paid attention to how many ounces of alcohol I've had and used various calculators to estimate my own BAC. My objective has been to make sure I'm not over the legal limit if I have to drive. But let's say I stop where I figure my BAC is about 0.07. That's on the edge of the point at which the inherent margin of error for the device might peg me at 0.08 or above if I have to take a test. Plus what if the officer intentionally biases the estimate by doing the "every last breath thing?" In fact, from what I've heard, the officer will more likely than not do that if he doesn't see it get high enough soon enough.

Before this happened and I started looking at how bad the situation with Breathalyzers is, I'd have been absolutely confident that I wouldn't be found to be driving above the legal limit and had no reason to fear getting breath tested. But I would've been wrong.

[blueballs]

In Florida failure to consent to BAC testing means automatic suspension of driving privileges, even though any attorney will tell you to never blow.

[CID1990]

If someone gets convicted on the BAC test alone, then my question would be, "Why did you submit to the damn test?" If someone is truly not "drunk," then they should have the good sense to refuse the BAC test. Cases without BAC and video of an obvioulsy drunk person never go to trial and usually get either dismissed or pled down to something minor like careless driving.

Because the police browbeat them into doing it by telling them a refusal will get them into all sorts of trouble. And in my State, my understanding is that it will. At the very least they'll lose their license because they agree to take the test in order to keep it when they get it.

If the rule is that the BAC can't be 0.08 or more, the government ought to be required to prove that the BAC is 0.08 or more. I'm sorry, but neither a police officer nor a judge is qualified to estimate somebody's BAC based on how they perform on a video. Nobody is. And they shouldn't be using Breathalyzers because they're too imprecise and there are too many sources of error.

Then you are misunderstamding the role of the blood alcohol level as it pertains to DUI.

The BAC is a benchmark established by the state. (Actually the Federal government with the threat of removing highway funds). The 0.08 BAC level is that level at which someone is presumed to be impaired. In other words, if you blow a 0.08, then the state holds that you were impaired. Period.

This doesn't address the fact that some people are dangerous to others at just a 0.05, and others can perform brain surgery at a 0.15. This is precisely why judges (with the help of video) and police officers absolutely CAN judge on the scene if a person is too drunk to drive. If you are telling me that when I pull a guy over who I have followed for miles, watching him weave fully left of center, and then he cannot even make a coherent sentence when he is stopped, and smells like a brewery, and I cannot make a judgement based on professional experience that he is drunk or not.... then I would ask you what the standard for judging whether a person is impaired or not? What, in your professional opinion, should the 'presumed impaired' BAC level be?

If we are to judge whether a person is impaired or not, then what other evidence can be used other than video and the observations of the officer? Is there something else? Because the BAC does not tell us if the person is impaired or not. It just tells us how much alcohol is in their blood. How about BAC level, video, the observations of the officer, AND a dead family of three in a head on collision with a guy who smells like a brewery, slurs his speech and blows a 0.07? I ask because that scenario actually occurred, and I worked the accident where the mother died in my arms in 1993. Should we just go after the people who actually kill others? Many great law enforcement minds would love to know the alternative to proactive enforcement as a method of deterrence.

The Datamaster manual requires that you breathe into the machine in the way you have described. The manufacturer requires it. If, on video, the officer does not tell you to blow every last bit of your breath into the machine, then the defense attorney will successfully attack the test. I have seen it happen. Plus, in 17 years, no BA officer has EVER told me that the reason you have suspects blow into the machine in the proscribed manner is anything other than simply following the directions which, if not followed lead to dismissal.

So, although I agree that the DUI laws in various states could use some revamping, I would suggest that you look to the laws themselves. Suggesting somehow that suspect behavior is somehow off limits to officer observation as being evidentiary runs counter to the oldest rule of evidence.

[Appaholic]

Refusal to submit to breathlyzer is automatic revocation of license for 1yr. Due to my extensive experience inthis arena, my advice is:

1- if you haven't had anything to drink, submit to field breathlyzer. It should register 0.00 & you'll be on your merry way
2- if you have had drinks & are unsure, submit to the field breathlyzer; if it is lower than 0.08 & officer is decent guy not prone to enjoying paperwork, you'll be on your merry way with warning;
3- if you submit to field breathlyzer & blow over the limit, they'll haul you downtown for the "official" breathlyzer at station. This test is admissable as evidence whereas the field test is not. DO NOT BLOW!! Take the one year revocation. Even though you won't be elgible for driving privileges, you won't have a DUI on your driving record, won't have the higher DUI insurance rates for 3 years, won't have ADETS classes & won't be under the thumb of the court system. This is assuming, like CID statesd, you aren't falling down drunk.
4- If you are obviously toasted, riding around town in a hawaiian shirt with sunroof open & music cranked on X drunk off of G&T's from your ex-GF's wedding & have a bag of weed with glass pipe laying on the passenger seat & music still cranked when officer walks up to your window, then don't show up for court, wait out the arresting officer to leave the force, turn yourself in after State has no witness, laugh as the judge throws out the case for not having a State witness, & start replnishing the $2k it cost you for the lawyer to make this happen.....

[death dealer]

Those of you who know me from elsewhere know I have railed against the irrational witch hunt against "drunk" driving. Recently someone close to me got popped for DUI under circumstances in which I think there is plenty of reasonable doubt as to whether or not they are really guilty. As a result I started looking into breathalyzers. The reason is that the subject "blew" a result close to but above 0.08 and I knew that the result had to be an estimate rather than a direct measurement of blood alcohol concentration (BAC). If anything, the situation is worse than I thought it would be.

Sounds like your friend is a real underachiever.

[Appaholic]

Those of you who know me from elsewhere know I have railed against the irrational witch hunt against "drunk" driving. Recently someone close to me got popped for DUI under circumstances in which I think there is plenty of reasonable doubt as to whether or not they are really guilty. As a result I started looking into breathalyzers. The reason is that the subject "blew" a result close to but above 0.08 and I knew that the result had to be an estimate rather than a direct measurement of blood alcohol concentration (BAC). If anything, the situation is worse than I thought it would be.

Sounds like your friend is a real underachiever.

Yeah, nothing to brag about.....what a rookie....

[CID1990]

Refusal to submit to breathlyzer is automatic revocation of license for 1yr. Due to my extensive experience inthis arena, my advice is:

1- if you haven't had anything to drink, submit to field breathlyzer. It should register 0.00 & you'll be on your merry way
2- if you have had drinks & are unsure, submit to the field breathlyzer; if it is lower than 0.08 & officer is decent guy not prone to enjoying paperwork, you'll be on your merry way with warning;
3- if you submit to field breathlyzer & blow over the limit, they'll haul you downtown for the "official" breathlyzer at station. This test is admissable as evidence whereas the field test is not. DO NOT BLOW!! Take the one year revocation. Even though you won't be elgible for driving privileges, you won't have a DUI on your driving record, won't have the higher DUI insurance rates for 3 years, won't have ADETS classes & won't be under the thumb of the court system. This is assuming, like CID statesd, you aren't falling down drunk.
4- If you are obviously toasted, riding around town in a hawaiian shirt with sunroof open & music cranked on X drunk off of G&T's from your ex-GF's wedding & have a bag of weed with glass pipe laying on the passenger seat & music still cranked when officer walks up to your window, then don't show up for court, wait out the arresting officer to leave the force, turn yourself in after State has no witness, laugh as the judge throws out the case for not having a State witness, & start replnishing the $2k it cost you for the lawyer to make this happen.....

That's all good advice.

SC is a little different. If the law has not changed in the last year, then a refusal gets you an automatic 30 day suspension. If you absolutely need to drive for work, etc, then you can go to an implied consent hearing and the judge will give you a license for driving to and from work. In my mind, under SC rules, I can see no reason why anyonw would ever blow the Datamaster unless they know they are under the legal limit.

[Appaholic]

Refusal to submit to breathlyzer is automatic revocation of license for 1yr. Due to my extensive experience inthis arena, my advice is:

1- if you haven't had anything to drink, submit to field breathlyzer. It should register 0.00 & you'll be on your merry way
2- if you have had drinks & are unsure, submit to the field breathlyzer; if it is lower than 0.08 & officer is decent guy not prone to enjoying paperwork, you'll be on your merry way with warning;
3- if you submit to field breathlyzer & blow over the limit, they'll haul you downtown for the "official" breathlyzer at station. This test is admissable as evidence whereas the field test is not. DO NOT BLOW!! Take the one year revocation. Even though you won't be elgible for driving privileges, you won't have a DUI on your driving record, won't have the higher DUI insurance rates for 3 years, won't have ADETS classes & won't be under the thumb of the court system. This is assuming, like CID statesd, you aren't falling down drunk.
4- If you are obviously toasted, riding around town in a hawaiian shirt with sunroof open & music cranked on X drunk off of G&T's from your ex-GF's wedding & have a bag of weed with glass pipe laying on the passenger seat & music still cranked when officer walks up to your window, then don't show up for court, wait out the arresting officer to leave the force, turn yourself in after State has no witness, laugh as the judge throws out the case for not having a State witness, & start replnishing the $2k it cost you for the lawyer to make this happen.....

That's all good advice.

SC is a little different. If the law has not changed in the last year, then a refusal gets you an automatic 30 day suspension. If you absolutely need to drive for work, etc, then you can go to an implied consent hearing and the judge will give you a license for driving to and from work. In my mind, under SC rules, I can see no reason why anyonw would ever blow the Datamaster unless they know they are under the legal limit.

Yeah, me neither...NC is actively trying to close the loophole by not blowing by making the punishment for refusal as severe as a DUI conviction....

[ASUG8]

That's all good advice.

SC is a little different. If the law has not changed in the last year, then a refusal gets you an automatic 30 day suspension. If you absolutely need to drive for work, etc, then you can go to an implied consent hearing and the judge will give you a license for driving to and from work. In my mind, under SC rules, I can see no reason why anyonw would ever blow the Datamaster unless they know they are under the legal limit.

Yeah, me neither...NC is actively trying to close the loophole by not blowing by making the punishment for refusal as severe as a DUI conviction....

I had a friend hit a roadblock in Raleigh a few years ago and in his words was well above the limit. He refused to blow, had his case continued several times, and eventually dismissed. I had been told to never blow also, but I have also heard that some officers will try to strongarm you into doing so - I was told that in NC failure to blow was the equivalent of a guilty plea, but I don't know for certain if that's the case. Being new to SC, CID1990's advice is good to know, although we certainly try to avoid being in that situation whenever possible.

[canyoncat]

I believe here in Montana, that a refusal to do a breathalyzer is an automatic suspension of your license for six months. I may be wrong on that however. I do know they are currently trying to put into law that you can not refuse a breathalyzer test.

[Grizalltheway]

In Florida failure to consent to BAC testing means automatic suspension of driving privileges, even though any attorney will tell you to never blow.

Same deal in MT. If you refuse to blow, you'll lose your license automatically for six months, but you won't have a DUI on your record (which also results in license suspension for six months, as well as a lot of other bullshit).

Dammit, cat beat me to it!

[Wedgebuster]

You must practice the "limp, floppy & unresponsive" technique.

You get stopped, and you are very sure you will be busted, after safely placing the vehicle in park, simply slump over in your seat and play dead. Do not respond to anything, or anybody, you are now a slug. You can "come to" after enough time has elapsed that your system will have safely disposed of the majority of your BAC.

Without permission, no blood test can be ordered by anybody, and no soberiety test can be administered. You can't be charged with refusal either, because you are unresponsive, and possibly in a coma.

[bandl]

I have heard about this being done….whether it is a true story or if it would fly, I dunno…

If you are drunk and are pulled over, IMMEDIATELY take the keys out of the ignition and slam back a bottle of liquor (grain alcohol is preferred, but some 151 or JD will do too) before the cop even approaches your car. Enough that anyone weighing less than a manatee would show a .08 in just a matter of minutes. So instead of being charged with a DUI, you’ll only get charged with a DIP. Of course, don't get back in your car (assuming you aren't arrested for being drunk in public). Have it towed. A DIP and car tow will still be cheaper for you than a DUI!

[bobbythekidd]

I have heard about this being done….whether it is a true story or if it would fly, I dunno…

If you are drunk and are pulled over, IMMEDIATELY take the keys out of the ignition and slam back a bottle of liquor (grain alcohol is preferred, but some 151 or JD will do too) before the cop even approaches your car. Enough that anyone weighing less than a manatee would show a .08 in just a matter of minutes. So instead of being charged with a DUI, you’ll only get charged with a DIP. Of course, don't get back in your car (assuming you aren't arrested for being drunk in public). Have it towed. A DIP and car tow will still be cheaper for you than a DUI!

That's the most retarded advice I've ever heard.

[bandl]

I have heard about this being done….whether it is a true story or if it would fly, I dunno…

If you are drunk and are pulled over, IMMEDIATELY take the keys out of the ignition and slam back a bottle of liquor (grain alcohol is preferred, but some 151 or JD will do too) before the cop even approaches your car. Enough that anyone weighing less than a manatee would show a .08 in just a matter of minutes. So instead of being charged with a DUI, you’ll only get charged with a DIP. Of course, don't get back in your car (assuming you aren't arrested for being drunk in public). Have it towed. A DIP and car tow will still be cheaper for you than a DUI!

That's the most retarded advice I've ever heard.

Hey, Maxim mag was huge when I was in college...
(fairly certain that was where I read about it at least)