Georgia DUI Blog

     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

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.

     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.  

     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?

     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

     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.

     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.

     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. 

     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.   

     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.

     A major issue with infrared breath testing devices is that they not only detect the ethyl alcohol found in alcoholic beverages but also in other substances that have a similar molecular structure. Stated differently, these devices identify any compound containing the methyl group molecular structure. And the issue with this is that more than one hundred compounds can be found in a human’s breath at any one time and 70% to 80% of these compounds contain the methyl group molecular structure. The consequence of this is that these methyl group molecular structures will be incorrectly identified and labeled as ethyl alcohol. Interestingly, the more ethyl group substances the breathalyzer detects, the higher the false blood alcohol content estimate will be.

     The National Highway Traffic Safety Administration (NHTSA) has found that people who are diabetics or dieters can have acetone levels that are hundreds, if not a thousand of times higher than people who are not diabetics or dieters. The key issue here is that acetone is one of the many substances that can be falsely detected as ethyl alcohol by some breathalyzers.

     There’s also a variety of products found in the environment that can lead to erroneous BAC results with these machines. Some of these products include substances or compounds found in cleaning fluids, celluloid, gasoline, paint removers, and in lacquers. Other common substances that can result in false BAC levels are alcohol, vomit, or blood in the person’s mouth. False BAC readings can also be caused from electrical interference, dirt, smoke, cell phones, police radios, moisture, and tobacco smoke.

     Infrared breath testing devices can be very sensitive to temperature and will result in false readings if they are not adjusted or recalibrated to compensate for ambient or surrounding air temperatures. Moreover, the temperature of the person being tested is also significant. More specifically, each degree (in Centigrade) in the subject’s body temperature above 34 C (98.6 Fahrenheit)  can result in a relatively large elevation (about 8.6%) in apparent BAC.

Thanks to lawyers that have been fighting for the source code that controls the operation of the Intoxilyzer it looks like the tide is turning. Previously, prosecutors all over the country have been objecting to turning it over because it is a “trade secret” and that the State does not have it in their possession.

Some Judges have Ordered CMI to turn it over and the company has been flatly refusing to do so. See Contempt Order here. cmi-turnover-order.pdf

CMI has finally decided to cooperate. They are willing to let it be examined subject to a protective order. I don’t believe this has been accomplished yet and we have not seen the proposed protective order and how restrictive it will be. See attached. CMI memo

CMI’s new “state of the art” machine has more problems.  Now folks are getting charged with refusals through no fault of their own.

See the attached memo. fdle-memo.pdf

Shortly after this blog was launched last year a producer from the “Oprah” show contacted me, because they were considering a segment on bariatric surgery and alcohol consumption.  She had found our last article on the subject while researching on the web and had several questions.  We talked for quite some time, and a few weeks later they aired their segment.  As a result of the publicity a doctor in California hurriedly put together an experiment.  The following story summarizes his findings.

SAN FRANCISCO (Associated Press, June 17, 2007)- People who had obesity surgery got drunk after just one glass of red wine, researchers reported in a small study that was inspired by an episode on “The Oprah Winfrey Show.”

“A lot of people think they can have one glass of wine and be OK,” said Dr. John Morton, assistant professor of surgery at Stanford University Medical Center, who is the study’s lead author. “The concern here is they really can’t.”

Morton has performed more than 1,000 gastric bypass, or stomach stapling, surgeries. He said he routinely warns his patients about drinking alcohol, but it wasn’t until Winfrey discussed the issue on her show last October that the public really took notice. He said questions poured in. “I didn’t find a whole lot in the literature, so that prompted the study,” he said.

The research team gave 36 men and women - 19 who had obesity surgery and 17 who did not - five ounces of red wine each to drink in 15 minutes. Using a breathalyzer, their alcohol levels were measured every five minutes until it returned to zero. More than 70 percent of the surgery patients hit a blood-alcohol level of 0.08 percent, which qualifies as legally intoxicated in California, and two reached levels above .15, Morton said. By contrast, most of the control group had levels below 0.05 percent, the study reported.

Researchers also found that obesity patients took longer to sober up. After matching the control group with the patient group for age, gender and weight, they found the patients took 108 minutes on average to return to a zero blood-alcohol level versus 72 minutes for the control group. Morton said the obesity surgery patients don’t produce as much of an enzyme that breaks down alcohol because their stomachs are smaller. Also, the alcohol passes to their small intestine faster, speeding up absorption, he said.

Dr. Madelyn Fernstrom, director of the weight management center at the University of Pittsburgh Medical Center, said Morton’s results support alcohol warnings normally given to gastric bypass patients. However, she called drinking five ounces of wine in 15 minutes an “artificial” test. No one - let alone bariatric surgery patients - would be advised to drink that amount of alcohol so quickly, she said.

This article was published by Reuters on April 7, 2007.

LONDON, April 7 (Reuters) - An airline pilot arrested just before take-off on suspicion of being over the alcohol limit was not drunk and the diet he was on may have been to blame for the confusion, airline Virgin Atlantic said on Saturday.

Police arrested the 47-year-old pilot of a New York-bound Virgin Atlantic [VA.UL] plane at London’s Heathrow airport last Saturday after being tipped off by security staff who thought the pilot had been drinking.

While an initial breath test showed the pilot to be over the alcohol limit, police told the pilot on Saturday that a blood test was negative, Virgin Atlantic spokesman Paul Charles said.

“The result showed the amount of alcohol in the blood was consistent with that of a non-drinker,” he said.

No charges will be brought against the British pilot, whose name was not released. The pilot, suspended after the incident, will be able to resume his duties immediately, the airline said.

“He is elated with the news and is keen to resume his flying career as soon as possible,” Charles said.

Charles said a diet the pilot had been on may have been the cause of the mistake. A laboratory that carried out a blood test on the pilot said some diets led the body to generate increased levels of acetone, he said. “It would smell like alcohol on someone’s breath,” he said.

The following post is from Chuck Laroue (Who gives credit to Larry Taylor).

CMI did a study using the Digtal Corp.Nov.  29 1983 and they exposed the Intox 5000 to Freq form .5 Mhz to 1000Mhz  and there was several frequencies where the detector gave no response, all frequencies above 625 Mhz registered no response, RF inhibit was documented from 15 to 120; 130- 175, 185 to 295; 310-315; 370; 575; 595 to 615 all other tested frequncies exhibited no response.

The test results were included in the 1984 CMI Operator’s manual.

I am not aware of any modifications or upgrades to the RF detector.

There have been other studies:

National Bureau of Standards, under contract with the National Highway Traffic Safety Administration to conduct accuracy testing on breath machines (referred to in the report as “Evidential Breath Testing” devices, or “EBTs”):
“The Washington D.C. Metropolitan Police Department reported to NHTSA that EBTs were found to display erroneous BAC [blood-alcohol content] readings in the presence of electromagnetic fields from radio transmission….Representatives of NHTSA and NBS were given a demonstration by police officers who routinely conduct breath testing using an EBT in a mobile van. One police officer operated his handheld radio within 1 foot of the EBT and demonstrated that the electromagnetic field could severely affect the analysis of alcohol samples.”

In 1983, the National Bureau of Standards quietly prepared a preliminary report on tests performed on the various breath testing devices used by police agencies nationwide (Effects for the Electromagnetic Fields on Evidential Breath Testers). Each of the 16 models tested were subjected to four different frequencies typically present in the standard police environment. Of the 16 units tested, 6 showed minimal interference; 10 of the 16 showed substantial susceptibility on at least one frequency.
The report characterized the potential effect of RFI on the testing of alcohol as “severe”.
Those conducting the study noted that the local Washington D.C. Metropolitan Police Department was complaining that breathalyzers were giving erroneous breath alcohol readings in the presence of radio transmissions. In a field demonstration of the RFI problem for representatives of NBS and the National Highway Traffic Safety Administration, D.C. officers using a breathalyzer in a mobi! le van showed how handheld radios radically affected the analysis of breath samples

“These results show that EMI is a potential problem with many of the EBT units currently in use….The states may have to take interim measures to determine the extent of their individual problems with EMI affecting EBTs.”

The reaction by the federal government to this report was, perhaps, predictable. Afraid that it would undermine public confidence in law enforcement methods, the government classified the document and then buried it. However, it was later resurrected by a Minneapolis DUI law firm’s “Freedom of Information Act” lawsuit. Most manufacturers of breath machines today quietly offer an “RFI detector” as an option in their products. Unfortunately, these “detectors” are unreliable and, in any event, are rarely purchased by law enforcement agencies.

Other RFI studies:

Andre Moenssens, et al., Scientific Evidence in Civil and Criminal Cases ‘ 3.09 at 204 (4th ed. 1995). This interference describes the effect of an electronic instrument on a radio wave or current that it is not designed to pick up. If a particular Breathalyzer as an electronic instrument were susceptible to RFI, then the measurement of light distance obtained when the operator balances the meter might not be an accurate indication of the amount of alcohol in the breath sample. Instead, the light distance might reflect, in part, a deflection in the meter needle caused by a stray current induced by radio waves in the surrounding environment

Medicine administered to an individual that alters airways and alveolar sacs changes the 2100:1 ratio used in breath alcohol testing. A blood test would be the appropriate test to request in cases in which respiratory medicines have been administered to an individual prior to breath testing.A study conducted in 1998 added information to the question of alveolar exchange alteration. T. Martinez and R. Martinez, The Effect of an Inhalation Aerosol Bronchodilator on Breathalyzer Results in Drinking and Non-Drinking Subjects, Proc.West.Pharmacol.Soc. 41:51-52 (1998). Is there a difference of false positives between non-drinking and drinking subjects? The researchers found in non-drinking subjects that a single puff from a bronchial inhalator obtained readings as high as 0.120 BrAC in 30 minutes and the subjects returned to a 0.00 BrAC in 6 minutes. Thus, a 20-minute depravation period is sufficient under these conditions.

However, when drinking subjects who started with a BrAC of 0.05 used a bronchial inhalator, the effects of erroneously high readings were observed over prolonged periods. The influence of the bronchial inhalator influenced the third digit after the 20-minute period. The findings are relevant for testing subjects near the legal limit range; however, the defense for extremely high readings over the legal limit is not supported. Limitations of the study include (1) consideration of oxidization values, (2) that no more than two puffs of a bronchial inhaler were examined, (3) a non-representative population sample, and (4) the limited types of medications available.

When a law enforcement officer determines that the defendant has used medication, he should then request a blood test and should not continue with a breath test. If the breath test is admitted, the prosecution should have the burden of proving that the medication did not interfere with the test result. People v. Miller, 166 Ill.App.3d 155, 519 N.E.2d 717, 116 Ill.Dec. 649 (3d Dist. 1988). See also People v. Winfield, 30 Ill.App.3d 668, 332 N.E.2d 634 (3d Dist. 1975).

Ronald Henson Ph.D., C.P.C.T.

Dr. Ronald Henson was kind enough to share this with us.

The Tyndall Effect is at issue for drivers involved in accidents in which the air bag device was deployed. The Tyndall Effect, discovered by John Tyndall, a British physicist in the 1800s, is the suspension of insoluble particles (colloidal suspension) in liquid or gases. The effect is a dispersion of light. Like headlights in the fog, the light emitted from the headlight is not shown directly through the fog to a road sign. Instead, the fog (colloid) disperses the light. In relation to airbags and breath alcohol testing, a person exposed to airbag deployment can produce an erroneously high breath alcohol reading using infrared technology machines.

The airbag is deployed (at 200 m.p.h.) using a nitrogen gas to fill the airbag in about 30 milliseconds. The powdery substance seen during deployment and on an individual’s clothing is talc and/or cornstarch packed with the bag to maintain the bag’s integrity while stored in place. When the talc and cornstarch are deployed into the air with the airbag inflation, the particles are inhaled and will be expelled in the breath for several hours. Individuals have reported regurgitating and spitting out the powdery substance for two to three hours and more. Andreas Madlung, The Chemistry behind the Airbag: High Tech in First-Year Chemistry, 73 J.Chem.Educ. 347 (1996).

When an individual then blows into a breath machine using infrared analysis like the Intoxilyzer Model 5000, the talc and/or cornstarch is introduced with the breath sample into the breath analysis chamber. When the infrared light is shown through the chamber, the light is then dispersed because of the Tyndall Effect. Thus, the reading is high erroneous when attempting to qualify and quantify for ethyl alcohol. When the Intoxilyzer Model 5000 was first released in the early 1980s, the airbag/Tyndall Effect was not a likely issue due to a lack of airbags in vehicles. However, with the mandates for airbags and expansion of their usage within the vehicle, the Tyndall Effect is a major factor in BrAC accuracy. Blood testing is the appropriate method to combat the Tyndall Effect.

Ronald Henson, Ph.D., CPCT
P.O. Box 10706
Peoria, IL 61612-0706
Beron Consulting
(309) 360-5614
http://www.beron.us

Dr. Ronald Henson has shared the following observations about breath testing of individuals who have blood in their mouths, usually following a traffic accident.

If blood is found in the mouth of an individual, medical treatment should be given first, and then a blood-alcohol analysis test should be requested. In many cases, a defendant may have been involved in an accident, and blood will be evident in the mouth from loose teeth, a cut lip, or other lacerations and abrasions. Bleeding of the gums and loose teeth may also be symptoms of gum disease.

Focusing on Henry’s Law, if alcohol molecules were introduced from the bottom part of the simulator into the outlet, equilibrium would no longer be established. In fact, there would be a higher concentration of alcohol molecules at the breath outlet/inlet tube than normal. Thus, a high reading would occur.

Although there is not a published decision on this issue, there is an appellate court decision “not to be published.” In People v. Gray, No. 3-93-0077, Rule 23, slip op. at 4 (3d Dist. 1993), William Brey, retired chief of the former Illinois Department of Public Health Division of Alcohol and Substance Testing, testified, “any foreign substance in the mouth, including blood, required a urine or blood test instead of a breathalyzer test.”

Ronald E. Henson, Ph.D.

P.O. Box 10706

Peoria, IL. 61612-0706

(309) 360-5614

www.beron.us