More on Breath Testing for Drugs – It is Coming

April 23rd, 2014 Allen Trapp Posted in Breath Tests, Driving under the Influence of Drugs, PBT's No Comments »

A roadside breath test for cocaine, marijuana, and other drugs may not have arrived in your state yet, but it is coming. Using a commercially available breath sampler, Swedish scientists were able to identify 12 drugs in the breath samples provided by at least 40 patients who had taken drugs in the previous 24 hours. However, all were probably hard core users because they were were recovering at a drug addiction emergency clinic.

This study is the first to detect alprazolam (the active ingredient in Xanax) and benzoylecgonine (an inactive metabolite of cocaine) in exhaled breath, according to a journal news release. Ths study confirms that diazepam (Valium), amphetamine, methamphetamine, morphine, and other substances can be detected in a person’s breath.

The author of the study emphasized that future studies should test the correlation between blood concentrations of drugs and the breath concentration. Currently, analysis of blood and urine samples is the most common method for detecting the presence of drugs and in the case of blood the concentration. However, advocates believe that breath test for drugs would be simpler, less invasive and easier to use in many locations, including roadside checks. Accuracy is another, and more important, factor.

Exhaled breath contains micro-particles that carry certain substances picked up from the fluid lining the airway. Any compound that has been inhaled or is present in the body can pass into the breath, where it can be detected. When a person breathes into the device, saliva and large particles are separated from the micro-particles that need to be measured. The micro-particles are deposited on a filter, which can then be sealed and stored until analysis is conducted using lab tests known as liquid chromatography and mass spectrometry.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website
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GERD’s First Cousin: Another Problem with Breath Tests

April 10th, 2014 Allen Trapp Posted in Breath Tests, Uncategorized No Comments »

Gastroesophageal reflux disease (GERD) and laryngopharyngeal reflux (LPR) are somewhat similar diseases that seem to be reaching epidemic proportions. Millions of Americans suffer from their sequelae, ranging from subtle annoyances to life-threatening illnesses such as asthma, sleep apnea, and cancer.

The recognized prevalence of GERD alone increased threefold throughout the 990’s.  LPR is reflux of gastric contents into the throat and larynx (voice box). This disease is different and distinct from GERD. The anatomic proximity of reflux into throat and larynx increases the potential for distortion of breath alcohol test results.

In order for a health care professional to be prepared to testify in a DUI case, he or she must review the following:

Pertinent previous medical records to establish the diagnosis of LPR.

Symptoms essential to the diagnosis of LPR.

A detailed timeline of food and drink consumed prior to the breath test administration because certain foods and drinks are known to worsen LPR.

Last but not least, we recommend that the doctor present to the jury a brief laptop explanation of the anatomy and physiology relevant to the understanding of LPR. One picture is worth a thousand words is as true now as it was 100 years ago.

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Quick Look at Continuing Breath Alcohol Test Problems

April 10th, 2014 Allen Trapp Posted in Breath Tests, Chemical Test, Intox 5000 No Comments »

It is now well established that a subject’s manner and mode of breathing just prior to providing breath for analysis can significantly alter the concentration of alcohol in the breath sample.  Hyperventilation has been shown to lower the breath alcohol concentration by as much as 20%.  Holding your breath for a short time (20 seconds) before exhalation increases the alcohol concentration in exhaled air by as much as 15%. Be on the lookout for forced agreement between the two breath samples. An officer can watch the BrAC rise on the second sample. When it gets close to the reading of the first sample, he can tell the subject to stop blowing, to ensure that the two samples are not more than .02 apart.

Since at least 1950 34°C has been the accepted breath temperature used for breath testing purposes. Professor Harger made this decision in 1950 after examining six subjects whose recorded range was between 31°C and 35°C. However in 1996, a much larger study of 700 subjects concluded that the average was 35°C-a full degree higher than Harger’s adopted temperature. Fox & Hayward compared the effects of hyperthermia and hypothermia on breath alcohol results. They found that average increase in Breath Alcohol Concentration over Blood Alcohol Concentration was 8.6°C for each degree Celsius increase in deep-core body temperature.

These are just two of the more basic issues we encounter in DUI defense. Although some lawyers think “anyone can do DUI,” the odds are that those lawyers are not familiar with these issues and will not invest the work required to gain the knowledge. No matter where you are, if you interview a lawyer and he or she cannot discuss these matters, keep looking.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website
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More on the New Intoxilyzer 9000

January 13th, 2014 Allen Trapp Posted in Breath Tests No Comments »

     The COBRA system (Complete Online BReath Archives) is a CMI manufactured data storage and management program for the Intoxilyzers. Every test or attempt at operation is, in theory, stored within the individual machine’s computer memory and retrieved to be stored and used by the COBRA (or other database) system.  When complete and intact, the database can be an invaluable tool for evaluating the overall performance of a specific Intoxilyzer.  With accuracy verifications conducted as part of each individual test the COBRA system can be used to monitor the readings over time and address issues before they become problems.  Completed tests vs. tests with non-numeric results can be assessed as can incidences of non-numeric results vs. refusals with at least one breath sample.Demographic data can be collected and assessed along with the alcohol testing. Pretty charts and graphs can be generated for individual agencies showing the numbers of their arrests and time of day, age of arrestee and/or gender.  The individual officers can be assessed for the number of tests or arrests they are involved in and the alcohol concentrations of the subjects being tested. The refusal rate per department can be compared to the refusal rate statewide or the refusal rate of the individual officer. The downloaded data can also be used for assessing the training needs of the operators – both individual operators as well as statewide operators. If an operator makes frequent typographical errors that are hand-corrected later it could be the operator doesn’t know how to correct it during the data entry mode of testing. If large numbers of officers are running tests, without a new observation, after a mouth alcohol is detected the instructors and program managers will need to consider adding more information or revising how the training is currently being conducted. The DOFS will be able to generate control charts for the individual machines using the alcohol control tests (the dry gas samples run with each subject test) or they could program in weekly (remote) checks and downloads.

Remote checks meaning the DOFS can run tests such as diagnostics, DVM checks and control sample tests (simulator vapors or dry gas, whichever is connected) using the phone lines or high-speed connections. Remote troubleshooting becomes a reality. Updating driver’s records with breath-alcohol results and sending off necessary documentation to the courts and hearing officers can also be handled if the DOFS writes these functions into the programming. The COBRA system could be used to upload information to a virtual library for access by attorneys and others. Maintenances, inspections and repairs would be part of the database. Every test, in theory, should be there.  The availability of the database information to the defense community is an issue that has been fought time and again across the country and continues today. States that do not feel the breath alcohol program has anything to hide will post the database and certification pages for use in trial (Washington and South Carolina) while other states, like North Carolina, will fight sharing any of the data.

One of the most contentious issues in DUI defense over the past five years has been whether, and to what extent, the source code must be made available to the defense. The source code is that form of the software that can be read by a human programmer, as well as able to be processed by special programs that convert the source code into machine code. The full complement of source code is all of the electronic materials required to convert from the source code to the machine code. The conversion from source code to machine code is a one way process, that is, the machine code can always be reconstructed from the source code, but the source code cannot be reconstructed from the machine code. There are utilities that will convert machine code into a form that resembles source code. These utilities are called disassemblers and decompilers. While they generate text files that resemble the original source code, the text files generated in this fashion are not considered suitable for analyzing what the software does. Text files generated in this fashion are devoid of meaningful labels and comments, which were present in the original source code, and provide context for why the software operates the way it does. These comments and context are removed because they are not used by the computer when step by step instructions are created to instruct the computer. The source code is so named because all of the machine code can be traced to material present in the source code. One of the requirements imposed by DOFS requires CMI to disclose – on a very limited basis- its source code. A protective order and non-disclosure agreement acceptable to CMI must be in place. Furthermore, viewing of the source code must be done at CMI’s location. Why a non-disclosure agreement and protective order are necessary is difficult to explain – so long as you don’t think that hiding the source code is a legitimate exercise. The machine is patented, so there are no trade secrets involved. And requiring that the defense expert physically appear in Owensboro, Kentucky accomplishes little except making it more difficult and expensive for a defendant to obtain the source code. After all, one of these source codes can be sent halfway around the world in a zip file via e-mail.

In conclusion, it appears as if there will be an overall improvement in Georgia’s breath testing program. A control test with every subject test, downloading data, printing breath volumes, and reducing the number of potential interfering substances are all welcome developments. However, the refusal to adjust readings to reflect exhaled breath temperatures reflects a certain stubborn blindness, and the refusal to make the source code readily available perpetuates the tradition of secrecy cloaking breath alcohol testing. We had hoped for more transparency, but we are not surprised by what is coming our way soon.
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

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New Breath Testing Device, Intoxilyzer 9000, Coming to Georgia

December 14th, 2013 Allen Trapp Posted in Breath Tests, Chemical Test No Comments »

     Between now and the end of 2015 every Intoxilyzer 5000 in Georgia will be replaced by the Intoxilyzer 9000.  The Division of Forensic Sciences claims the new breath testing instrument is very accurate; however, the handful of “experiments” done during the evaluation period does not support DOFS claims. Their initial experiment on February 15, 2012, was limited to three drinking subjects who were tested at different time intervals and asked to provide both a “minimum exhalation” (instructed to stop blowing when the delivered sample volume was between 1.1 and 1.5 liters) and a “maximum exhalation” (blow, blow, blow). The only female subject was tested 15 minutes after her last drink, and her results were .063 and .073. One of the young male subjects, tested at 30 minutes after he stopped drinking, registered .042 and .045. The last young man, tested 24 minutes after his last drink, blew a .056 followed by a .064. Clearly, neither the first nor the last subject’s test results were within 5 percent of the mean. DOFS seems to have ignored their own requirements, but these results certainly justify encouraging subjects to blow until they cannot blow any longer if your objective is to obtain convictions.

Unlike the Intoxilyzer 5000-EN the new device will print a breath volume for each test. When the 5000-EN was first delivered to DOFS in 1998, it did the same. However, Jim Panter, head of the Implied Consent section at the time, ordered that this capability be disengaged when a person provided an adequate sample because it was “confusing.” Therefore, the 5000-EN only printed a breath volume (in theory) when it reported an insufficient sample. The 9000, as currently configured, will print a breath volume for all cases. The Operator’s Manual instructs officers to encourage subjects to provide a maximum exhalation, because “the longer you blow, the higher you go.

The Division of Forensic Sciences maintains that a person’s breath alcohol concentration is ultimately the product of a continual exchange of ethanol between the blood and breath that occurs in the pulmonary alveoli. DOFS acknowledges that some (“a substantial amount of”) alcohol can be lost to the cooler airway surfaces as the breath moves through the respiratory tract. What they do not acknowledge is the work of Dr. Michael Hlastala, which establishes the alcohol is also “picked up” as a breath sample travels up the respiratory system. He has also demonstrated that true alveolar air cannot be obtained, contrary to assumptions made by chemists sixty years ago, but those assumptions continue to dominate the world of breath alcohol testing.

      Another crucial area examined by DOFS during the evaluation phase was the potential for other volatile organic chemicals to interfere with test results. Few of the experiments were conducted when ethanol was present along with the other chemical. Nevertheless, there some notable findings. Acetaldehyde did not trigger an interferent message until it was present in a concentration of .06g/dl. However, at a concentration of .05, it generated a BrAC of .007.  Acetone did not generate a BrAC reading but was also not detected as an interferent until it was present in a concentration .10g/ml. Other substances such as ethylacetate, toluene, and isobutanol triggered error messages in concentrations as law a .01, while methanol was detected at .02. On the other hand, MEK did not trigger either a reading or an error message at concentrations lower than .10g / ml, once again in the absence of alcohol. Methylene chloride did not produce a reading or an error message at levels up to and including .10g/ml. 

       A number of other experiments were performed. One that caught our attention was the linear range test conducted on February 10, 2012. With a Guth simulator solution heated to 33.9 degrees Celsius, twenty tests were conducted, with an expected value of .08. Only two returned readings under 08, six readings were exactly at .08, and twelve were in excess of .08. Since this machine, like every CMI product on the market, assumes a breath temperature of 34 degrees, these results could be invaluable for a breath temperature defense at low readings. As an aside, the limit of detection shown by the one experiment shows that the lowest number detected was a .013, which was reported as .010.

       A number of states (e.g., South Carolina, Oklahoma) have been downloading breath test data to a central repository for years. DOFS has insisted that the handwritten logs maintained by the individual departments was sufficient, despite obvious omissions a number of us have encountered. One of the criteria for approval of the new Georgia breath testing device was the capability of the device to download data. The Georgia Breath Test Transition Implementation Plan dated June 15, 2012, states that the Division of Forensic Sciences will obtain the COBRA instrument database system for data retrieval from field instruments and seat licenses for each of the Area Supervisors. How this database will be employed remains to be seen, but if done properly it will enable us to detect ongoing problems with particular machines that are currently very difficult to identify. We do know that all Intoxilyzer 9000’s must be connected to the DOFS network through a LAN or data connection by July, 2015. Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

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Do Breath Tests Measure Deep Lung Air?

April 8th, 2013 Allen Trapp Posted in Breath Tests No Comments »

Alcohol reaches the surface of airways by diffusing from the bronchial circulation. When a person inhales, alcohol is taken from the airway surface and the inhaled breath becomes saturated with alcohol before just as it reaches the alveoli, where “deep lung air” is found. In the alveoli alcohol in the breath is in equilibrium with alcohol in the pulmonary capillary blood. Even though ethyl alcohol may exchange with the blood in the alveoli, since there is no partial pressure difference, there is no net change. The exchange in the airways will happend even though the bronchial blood flow is only about 1% of the total cardiac output because of alcohol’s extremely high solubility.

When a person exhales, the alcohol in the air passing from the alveoli to the mouth re-deposits alcohol onto the surface of the airways. In the meantime, some alcohol has re-entered the blood stream by way of the bronchial circulation. So the airways have been partially recharged with alcohol.

But there is still a net partial pressure driving force toward the airway tissue. With an average exhalation the exhaled air loses about 20% of the alcohol that it had in the alveoli. If a person takes a full and complete inhalation and exhalation, they would lose less alcohol and the measured alcohol in the breath would be higher than it should be. If a short exhalation occurs, then the alcohol measured in the breath will be lower than expected.
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

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Blood in the Mouth – Effect on Breath Tests

April 8th, 2013 Allen Trapp Posted in Breath Tests No Comments »

     A study published by the Journal of Clinical Forensic Medicine concludes that, although it my might an effect, blood in the mouth will not significantly alter the affects of a breath alcohol test.  There are detractors, who point out the issue is one of saliva and the unmistakeable reduction in BrAC that occurs when rinsing the mouth is permitted before a breath test. 

     This study found some statistically significant changes in breath alcohol concentration, but they were usually confined to third digit.  On the other hand, rinsing the mouth with water routinely leads to reductions of .03 to .04.  This is an issue where both scientists and attorneys who usually are employed by the defense have differences of opinion.
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website    

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Flawed Breath Tests in California

April 21st, 2011 Allen Trapp Posted in Breath Tests, Current Events No Comments »

     Hundreds of drunk driving convictions in Ventura County could be tossed out because a defect in some of the handheld Breathalyzer machines purchased earlier this year is causing inaccurate blood-alcohol readings. The Ventura County District Attorney’s Office has sent memos to local attorneys saying that eight Intoximeter Alco-Sensor V breathalyzers have shown “erratic results” in blood-alcohol tests taken between January 20th and March 31st, according to Kevin Drescher, the supervising attorney with the felony unit.

     The county purchased 128 of the devices, paying about $4,800 for each one. Drescher said he didn’t know how many people charged with DUI were tested with the Alco-Sensor V during that time. “I don’t have the actual numbers,” he said, adding that the office was still looking into the matter. “Obviously, we are trying to do what’s right in this situation.” He added the information on who used the eight defective devices should be easy to obtain since it is data entered into the machine. Drescher said law enforcement has stopped using all Alco-Sensor V devices.Assistant Sheriff Gary Pentis said Alco-Sensor V had a defective mouthpiece resulting in “irregular readings.” He said the defective machines will be fixed, tested and returned to the county in about three months. The department will use the older model, Alco-Sensor IV in the meantime. He said every law enforcement agency in the county uses the device.

     The District Attorney’s Office sent the memo to the Public Defender’s Office on April 15th, said Chief Deputy Public Defender Monica Cummins. She said about 160 clients who were either convicted of DUI during this time or have cases pending, will be contacted by the office. “Some cases are still open,” she said. Cummins said the defective machines had “no evidentiary value” that could be used in court, but could have resulted in people getting convicted or pleading guilty to drunk driving based on erroneous Breathalyzer tests results.Drescher said his office will check on a “case by case” basis where defective devices were used to determine the appropriate thing to do.

     Attorney Robert Sandbach said a client’s arraignment for drunk driving was postponed because he needs more information about the Alco-Sensor V. He and his client went to the Department of Motor Vehicles Tuesday to request a postponement on a hearing to suspend the client’s license. He said his client was “alarmed and shocked” after finding out the machine was unreliable and possibly inaccurate. Sandbach said he is aware of two other clients who were arrested for DUI and were tested by the Alco-Sensor V. 

     Sandbach said on top of the jail time, fines and fees, and getting a license suspended, there is another toll for the wrongly accused. “The embarrassment of going through the process only to find out that the evidence was not reliable,” said Sandbach.

     During a news conference in January, Ventura County Sheriff Geoff Dean said the use of the microphone-sized instrument would improve safety in the community, providing instant reading of a motorist’s blood-alcohol level. The devices were funded through a grant from the California Office of Traffic Safety through the National Highway Traffic Safety Administration. Officers were given about four hours of training on the devices before being sent out into the field.

     Attorney Mindy McQueen, who specializes in DUI cases, said Breathalyzer devices have never been infallible. She said the technology to make the devices faster, smaller and more economical has resulted in manufacturer design flaws.”These machines have never been infallible and that’s something that defense attorneys have tried to point out for years,” said McQueen, a member of the California DUI Attorneys Association.

     Pentis said the machines passed stringent testing before they were put to use. He said an officer in the field discovered the problem, reported it immediately, and the machines were pulled out and tested. Apparently temperature played a part in the false readings. Pentis said the only way the sheriff’s crime laboratory could duplicate the flaw in the Alco-Sensor V was to put it into a freezer. Pentis said the Alco-Sensor must be 100 percent accurate before it will be used by law enforcement. He did not explain why it was put into use when it was clearly not 100 percent accurate.

     Cummins said the Public Defender’s Office will move to have the convictions dismissed in cases where there may have been blood-alcohol errors. But some people who were found guilty or pleaded guilty as a result of these false readings have already served jail time, paid thousands of dollars in fines and have done community service as part of the conviction, Cummins noted. Also, harsher penalties are meted out to motorists who blow a .15 percent blood-alcohol level, said Cummins. In California, a blood-alcohol reading of .08 is considered the benchmark for being legally intoxicated.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website
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Hundreds of Breath Tests Tossed in Philadelphia

March 12th, 2011 Allen Trapp Posted in Breath Tests, Current Events No Comments »

Dozens of DUI cases in Philadelphia will be re-tried because of a bad breathalyzer, officials announced on March 9th.  Prosecutors have conceded that at least one of the breath testing devices used in the city was showing incorrect blood alcohol levels.

The district attorney’s office has agreed that in cases where people were found guilty solely because of the test (sounds like only guilty pleas to us), they will get a new trial.  In cases where other evidence was obtained, such as witness testimony (any case that ever went to trial?) or a blood test, the defendants would not be affected by this development.  The problem could affect about 200 convictions.

As of this date we have not been able to determine the exact nature of the problem with Philadelphia’s breath testing device.  We will update this post if more details come to our attention. 
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

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NFL Player Braylon Edwards’ DUI case continued until May

March 10th, 2011 Richard Blevins Posted in Breath Tests, Top 50 DUI Arrests of All-Time No Comments »

NFL player Braylon Edwards‘ DUI trial has been continued in New York until May.  His attorney is attempting to suppress the breath test taken.  Edwards gave a breath test the registered .16, which is twice the legal limit in Georgia.  Suppressing the breath test is a good way to attack the State’s case against you.  It appears his attorney is doing what our firm would do in a case like that.

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Additional Information on GERD and Breath Tests

October 8th, 2009 Allen Trapp Posted in Breath Tests No Comments »

     GERD is an acronym for gastroesophageal reflux disease.  It is manifested by heartburn and the regurgitation of stomach contents back into the esophagus.  The condition is caused by a problem with the lower esophageal sphincter, which is the valve that relaxes to allow food to enter the stomach and then closes in order to keep it there.  When a person has GERD, that sphincter simply does not remain shut but allows stomach contents to escape back into the esophagus.

     Numerous medications such as Prilosec and Nexium are now available.  Other means of minimizing the effects of GERD include not drinking alcohol, avoiding spicy food, and losing weight.  The most common symptom of GERD is heartburn or acid indigestion, which is a burning sensation just above the stomach. 

     It has been suggested that many people who suffer from GERD would be unable to continuously blow into a breath testing device long enough to provide an adequate sample, thus leading to a false accusation that an individual refused to take a state administered test.  However, the most serious problem is the potential for distorting the breath alcohol test result.  It has been recognized for many years that mouth alcohol can cause falsely elevated breath test readings, which accounts for the fifteen or twenty minute waiting period required in many states.

     If alcohol is still in the stomach at the time a breath alcohol test is taken, it may find its way into the mouth via regurgitation, hiccupping, or belching.  The absorption of alcohol may be delayed by a pyloric spasm or by simply eating a meal.  Furthermore, eating spicy foods, smoking cigarettes, and drinking alcohol are all known to cause GERD symptoms. 

     New studies have shown that the slope detector software (designed to “catch” mouth alcohol) is not sensitive enough to always detect mouth alcohol  when the amount in the mouth is fairly small.  Therefore, GERD cannot be ruled out, especially when the amount of alcohol consumed is inconsistent with the breath alcohol test reading, and the person has a history of GERD.  The most prolific student of the phenomenon, a professor emeritus at Ohio State University, has observed breath test results double the actual blood alcohol concentration when testing GERD patients.  More experimental work may be needed with people of different ages and gender and with different doses of alcohol and under different drinking conditions.  However, it appears that GERD is a problem, and anyone who suffers from the condition should be aware of the problem if arrested for DUI. 
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

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Intoxilyzer 5000 Breath Tests out in Florida

October 7th, 2009 Allen Trapp Posted in Breath Tests, Current Events No Comments »

For many years the state of Florida used the same breath alcohol testing device currently used in Georgia, and it helped to convict tens of thousands of DUI defendants across the state. Now evidence that the Intoxilyzer 5000 might not have been as reliable as prosecutors portrayed is coming to light.  About 70 times each month in Florida the new Intoxilyzer 8000 rejects a breath test because control tests (calibration checks) are not acceptable.  Therefore, Florida defense attorneys contend that similar problems should have been at least as common with the older model.

Two top experts have said that the Intoxilyzer 5000 breath test machines, which Florida used for about two decades before the state changed to the updated machines in 2006, could not meet today’s scientific requirements for ensuring accurate results.  The Intoxilyzer 5000 was only “inspected” once per month to see if the machine was working properly.  The machine now in use, the Intoxilyzer 8000, runs two calibration checks, as recommended by the National Safety Council, during every breath test.  The testimony of those experts now prevents prosecutors from introducing the Intoxilyzer 5000 breath tests in court in the small number of remaining cases where that older machine was used.

Due to the inadmissibility of the Intoxilyzer 5000 test results dozens of DUI defendants in different counties around the state have had charges dropped or reduced to reckless driving.  Unfortunately, it is too late for anyone already convicted with results from the Intoxilyzer 5000 to benefit from the situation.  Many prosecutors continue to claim that the Intoxilyzer 5000 machines were reliable, even if the scientific community now calls for better safeguards to make sure the machine is accurate.  On the other hand, defense attorneys say it is frightening to contemplate how many innocent people were convicted or saw no choice bu to plead guilty, and also lost their driver’s licenses, based on a test whose reliability is now in question.

In depositions in DUI cases this year, two state experts say the currently accepted practice is that a control test must be performed during each actual test to ensure accurate results.  Florida authorities used to say that a calibration check once per month was sufficient, but they have finally conceded that the scientific community has favored a calibration check at the time of each test for decades.  Prosecutors can still proceed with the older DUI cases without breath tests; however, a conviction requires a jury to believe that a driver was intoxicated based on police testimony or video recordings of the traffic stop.

The issue regarding the Intoxilyzer 5000 and whether its results were scientifically valid arose during the battle for access to the computer source code that runs the machines.  Defense attorneys in about 450 DUI cases questioned the reliability of the machines, and judges have ruled that the defendants should have access to the computer code inside the Intoxilyzer 5000 and 8000.  After the manufacturer refused to disclose the code, many judge have ruled that prosecutors would only be able to introduce the results if the established the admissibility of the test via expert testimony in each case.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website
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More on PBT’s (Preliminary Breath Tests): The Alco-Sensor

August 13th, 2009 Allen Trapp Posted in Breath Tests, PBT's No Comments »

     Although a number of PBT’s are approved for use in Georgia, the most common is the Alco-Sensor IV, which is manufactured by Intoximeter, Inc.  This preliminary breath testing device employs a fuel cell technology that is not specific for ethyl alcohol.  Nevertheless, it is used by police as a “screening” device when making their DUI arrest decisions.

     An Alco-Sensor only captures one milliliter of breath.  It cannot be adjusted for a person’s actual blood-to-breath ratio, body temperature, or gender.  In addition, it does not have a “slope detector” to rule out errors from the suspect’s mouth alcohol.  When this preliminary breath testing device only captures one milliliter of breath and registers .08, the Alco-Sensor IV unit is analyzing .00000038 gram of ethanol, or .38 nanograms per milliliter.  One nanogram is the same as one part per per billion, so .38 is a little more than one-third of one part per billion. 

     Despite these shortcomings, some states have allowed an Alco-Sensor with an attached printer to serve as an evidential breath testing device.  After all, more admissible breath tests means more DUI convictions, and that is exactly what the neo-prohibition advocacy groups want – more convictions.  The Georgia courts, recognizing their limitations, have resisted the State’s efforts to introduce preliminary breath test results into evidence.  If the subject ever comes up, now you know why the Georgia courts are right.  

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website
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More on Breath Temperature

July 24th, 2009 Allen Trapp Posted in Breath Tests, Intox 5000 No Comments »

     As far back as the 1930’s it was recognized that re-eqilibration of the alcohol and breath occurs at the lower temperature (as opposed to core body temperature) of the upper respiratory tract during expiration in such a manner that temperature controls the alcohol content of the expired alveolar air.  In the earliest “drunk-o-meter” invented by Professor Rolla Harger of Indiana University it was assumed that 61.5% of the collected breath sample was alveolar air and that 2100:1 was the appropriate partition ratio.  Partition ratio in this instance refers to the amount of alcohol in the blood compared to the amount in the breath.

     During a twenty-year period he and his colleagues conducted numerous experiments, which confirmed that the partition ratio varies at different temperatures.  In other words, breath alcohol test results will be different at different temperatures.  During all of this testing it was assumed that the average expired breath temperature was 34 degrees centigrade (Celsius), which in turn led to the conclusion that the average blood:breath partition ratio for breath alcohol testing is 2100:1.  The National Safety Council adopted this number in 1952, and so it has become engraved in the statutes of the several states over the last half century. 

     Researchers have questioned the use of a constant breath temperature and partition ratio since at least 1975.  Beginning in that year leader experts in the field began to question whether airway alcohol exchange played a bigger role in breath alcohol testing than was previously recognized.  More and more research has proven that the average expired breath temperature is closer to 35 degrees Celsius, including the German study of 1995 and a similar study sponsored by the Alabama Department of Public Safety three years later.

     As a result of the Alabama study that state adopted the Draeger 7110, which makes an adjustment for an elevated breath temperature.  In fact, the Alabama testing sequence includes two breath samples (like Georgia), two methods of analysis for every breath test, specifically infrared and fuel cell (unlike Georgia), breath temperature monitoring and correction for each breath test (unlike Georgia), and two calibration checks at .02 and .08 at the time of each breath test (unlike Georgia).  In addition, a comprehensive data collection package including breath exhalation profiles was included in the software designed for Alabama DPS (unlike Georgia).  The downloaded data includes a total review of all breath tests in the State (unlike Georgia).   This enables the state to identify and address both instrumental and operational problems.  In Georgia there is a handwritten log on which officers may make entries, but nobody knows how often it is used or how often it is ignored. 

     The Alabama program is truly a model program other states should emulate.  Before switching to the Draeger, Alabama (like Georgia) used the Inoxilyzer 5000.  That makes me wonder: If it’s not good enough for Alabama, why are we still using it?

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website
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Effect of Dentures on Breath Testing: Mouth Alcohol Reconsidered

June 28th, 2009 Allen Trapp Posted in Breath Tests No Comments »

     The problems with mouth alcohol in breath testing are well known.  The screening devices used at roadside by police officers in Georgia are incapable of detecting mouth alcohol since they are not even programmed with slope detection capabilities.  Supposedly, the Intoxilyzer 5000, which is used for evidential breath alcohol tests in Georgia, is different.

     In cases where dental appliances are not removed from a subject’s mouth before breath testing, a small amount of alcohol can remain under the dentures or other device.  If food particles are trapped, it is also possible that some of the alcohol will be absorbed into the food particles.  In either case the elimination of this alcohol during the twenty minute observation period (which is only a suggestion in Georgia) will not be complete and will cause an elevated reading on the Intoxilyzer 5000. 

     In one experiment a man with both upper and lower dentures registered a BrAC of .00 when the experiment began.  After swishing with alcohol and waiting for 20 minutes, the tests were indeed flagged as “invalid samples,” which means that the machine detected mouth alcohol.  Both the dentures and mouth were then rinsed with water.  Approximately sixteen minutes later he was tested again using the same protocol, and the results were .029 and .021.  After rinsing the mouth and dentures yet again and then submitting to another sequence of breath tests, the results were .038 and .17 less than one minute apart.  At the beginning of each testing sequence a baseline BrAC of .00 was obtained before swishing the alcohol.

     Additional testing has confirmed these findings.  Elevated breath alcohol results were consistently reported without the detection of mouth alcohol when people talked and breathed normally during the “observation period.”  Most significantly, there was no decrease between the two test results in the sequence as would be expected with mouth alcohol.  These observations make it fairly certain that breath alcohol tests results may be inflated when an individual has dentures or other significant dental work, such as a bridge, in his or her mouth.

 Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

    

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Breath Temperature: The Joker in the Deck of Breath Testing

April 30th, 2009 Allen Trapp Posted in Breath Tests No Comments »

     Infrared breath testing devices such as the Intoxilyzer 5000 rely on certain assumptions.   Since a report of the National Safety Council in 1952 it has been assumed that there is a constant 2100:1 ratio between the amount of alcohol in the blood versus the amount in a person’s breath.  Similarly, it has been assumed that the average temperature of expelled human breath is 34 degrees centigrade.

World class researchers such as A.W. Jones have consistently found that breath temperature variability affects test results.  The Fox and Hayward study published in he Journal of Forensic Sciences demonstrated that for every one degree increase in core body temperature a person’s breath alcohol concentration would increase by 8.6 percent.  In the mid-1990’s three studies of hundreds of individuals found that the average breath temperature was 35, 35.1, and 34.9 degrees respectively, for an overall average of 35 degrees.  Therefore, it appears that an “average” person whose breath  measured by an Inotoxilyzer 5000 is .087 has, according to these studies,  a blood alcohol concentration of .079, even if you ignore every other confounding factor except breath temperature.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website
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Minnesota Supreme Court Source Code Victory

April 30th, 2009 Allen Trapp Posted in Breath Tests, Case Law Update, Current Events No Comments »

     The Minnesota Supreme Court issued a “split decision” in two Intoxilyzer source code cases today. However, the minimal showing required for disclosure of the source code augurs well for future defense efforts.

     In State v. Underdahl the Supreme Court ruled that the district court abused its discretion in finding the source code relevant and related to his guilt or innocence. Underdahl made no threshold evidentiary showing whatsoever; while he argued that challenging the validity of the Intoxilyzer was the only way for him to dispute the charges against him, he failed to demonstrate how the source code would help him do so. He advanced no theories on how the source code “could be related to [his] defense or why the [source code] was reasonably likely to contain information related to the case.”

     State v. Brunner, however, yielded a different result. This defendant submitted source code definitions, written testimony of a computer science professor that explained issues surrounding the source codes and their disclosure, and an example of a breath test machine analysis and its potential defects. Brunner’s submissions showed that an analysis of the source code may reveal deficiencies that could challenge the reliability of the Intoxilyzer and, in turn, would relate to his guilt or innocence. Therefore, the Supreme Court held that the district court in Brunner’s case did not abuse its discretion in concluding that the source code may relate to his guilt or innocence.

     The Court also considered whether the district courts’ findings that the State had possession or control of the source code were clearly erroneous. The Minnesota Rules of Criminal Procedure require prosecuting attorneys to assist the defendant in seeking access to matters that are within the “possession or control” of the State. Both district courts had found that the State is the owner of the source code for the Minnesota model of the Intoxilyzer 5000EN, relying on the request for proposal (RFP) issued by the State when replacing the previous version of its breath-test instrument. The Supreme Court found that the source code was effectively in the possession or control of the state.

     As the law now stands in Minnesota, the defendant must make a minimal showing in order to obtain an order requiring the State to produce the source code. The remedy in per se cases, including the Minnesota version of “extreme DUI”, will be dismissal, with suppression the likely remedy in “less safe” cases. Will the State comply? Will CMI cooperate? Stay tuned.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website
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Does the Breath Test Really Measure Deep Lung Air?

March 11th, 2009 Allen Trapp Posted in Breath Tests, Chemical Test, Intox 5000 No Comments »

     One of the assumptions upon which breath alcohol testing has rested since the 1950’s is the belief that the instruments measure “deep lung” or alveolar air.  This outdated assumption has been eroded as research over the past two decades has yielded a greater understanding of the exchange of highly soluble gases by the lungs.  No longer can it be assumed that alveolar air is in equilibrium with blood alcohol simply because the breath test reading reaches a plateau. 

     The findings of Dr. Michael Hlastala of the University of Washington confirm that during inspiration the relatively cool and dry air being inhaled becomes warmer and absorbs liquid in the airways.  This air also absorbs soluble gas dissolved in the airway tissue.  During exhalation the air is cooled and dehumified.   The alcohol present in a breath sample comes entirely from the lining of the airways.  This mucus and tissue, not the blood in the lower part of the lungs, is the source of “breath alcohol concentrations.”

     Further research has shown that breath alcohol concentration continues to rise as a person exhales until he or she cannot exhale any longer, which causes the flattening or plateau of the breath alcohol concentration.   It has also been confirmed that the average directly measured partition coefficient for alcohol in blood at 98.6 degrees Fahrenheit is 1756:1, not  2100:1 as asssumed by the Intoxilyzer 5000.   Also of significance is the discovery that an increase in exhaled volume beyond the minimum required by a breath testing instrument results in an increased breath alcohol reading and a decreased blood to breath partition ratio.  For those with smaller lung capacity, these findings also have negative consequences because a greater portion of their vital capacity (maximum volume of air that can be inhaled and exhaled) is necessary in order to generate a printed result.  On the other hand, those with larger lungs will benefit from an unfair advantage. 

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website
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Alcohol is not Always Ethanol

March 11th, 2009 Allen Trapp Posted in Breath Tests, Chemical Test, Intox 5000 1 Comment »

     Ethanol or ethyl alcohol contains two carbon atoms linked to hydrogen atoms (methyl groups) and one oxygen atom linked to a hydrogen atom (hydroxyl group).  Most infrared breath testing devices rely upon the absorption of light at the 3.39 and 3.48 micron wavelengths, which are characteristic of the carbon-hydrogen bond,  for the determination of breath alcohol concentration.   However, at these wavelengths the infrared energy will be absorbed by many organic molecules containing carbon atoms bonded to hydrogen atoms, including hexane, toluene, and methyl ethyl ketone. 

     Experiments have shown that the Intoxilyzer 5000 will report these substances as ethyl alcohol and will print what purports to be a breath alcohol concentration.  In other words, the results for substances other than ethyl alcohol are reported as alcohol.  The research leaves little doubt that the instrument simply cannot distinguish the different alcohols from each other.   The numerical results are always reported as grams of alcohol per 210 liters of breath even when there is no ethanol in the breath sample.  

     The results for these interfering substances once again demonstrate the non-specificity of the Intoxilyzer 5000 and any other breath analyzer that relies on the the absorption of energy by the carbon-hydrogen bond in the 3.39 and 3.48 micron range.   

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website
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Machine Failing? Just Unplug it!

October 28th, 2008 Allen Trapp Posted in Breath Tests No Comments »

     Defense attorneys were in a Miami courtroom on October 23d seeking a judge’s order to inspect the hard drives every Intoxilyzer 8000 used in Miami-Dade County. Before Judge Jose L. Fernandez, attorney Michael Catalano said, “We’re interested to find why she was unplugging breath machines so that she could cover up mistakes and not tell anybody.” This comes after the Florida Department of Law Enforcement fired the examiner who was responsible for testing all the DUI machines, alleging she failed to follow protocol with the inspections.

     Defense attorneys contend it is a scandal that puts suspicion over thousands of DUI cases in Monroe, Broward and Miami Dade. “The number of cases involved could be as many as 10,000 here in Miami-Dade County,” attorney Richard Hersch explained to a local reporter. “The inspector who has been discharged here was on duty for about 18 months before she was discharged.” In a “notice of dismissal”, the FDLE accuses analyst Sandra Veiga of having encouraged police agencies to abort tests on Intoxilyzer 8000 machines that were giving questionable results. “What the inspector was doing,” Hersch said, “was unplugging the machine if the inspection was failing, then plugging it back in; that prevented the machines from reporting the malfunctions to Tallahassee.”

     FDLE documents revealed that Miami-Dade and Miami Beach police apparently blew the whistle on the state’s testing supervisor. Miami-Dade’s state attorney believes the breath test scandal can be overcome, that the machines in question have passed subsequent inspections and have been shown to be operating properly. The devices run on a computerized system. Outside the courtroom on Thursday, assistant state prosecutor Pat Trese said, “We have every belief they’re working accurately and in a responsible way.”

     The Intoxilyzer 8000 is the only breath test machine approved for use in Florida, there are more than 300 in use statewide (30 in South Florida). Defense attorney Justin Beckham observed, “We’re going to try to get the judges to open up these machines and see what the truth is – the truth is supposed to come out, that’s our job.” Late Wednesday, an FDLE spokesperson said the case was “closed” and there would be no criminal charges pursued against Veiga. The FDLE’s Heather Smith added that the inspector “didn’t follow proper procedures.”

     “She failed to follow the correct testing protocol and would pull the plug on the machine, rather than let it finish the test and record her errors,” Smith said.
“It was not machine failure, but operator failure,” Smith said. In his letter firing Veiga, FDLE Commissioner Gerald Bailey wrote that she had “brought discredit” to the department and it’s breath alcohol testing program.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website
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