Georgia DUI Blog

     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

     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

     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

Here are my top complaints with Georgia’s breath testing program.  It is one of the primary reasons that I tell most people to refuse the breath test.  If you are close to the legal limit, given the problems discussed below, it is hard to have confidence in the test results.  There are license consequences for such a refusal, so if possible, consult with a lawyer.

1.  Georgia uses antiquated technology.  Georgia uses the Intoxilyzer 5000.  Alabama and many other states stopped using this machine years ago.  There is much better technology on the market that uses two different points on the spectrum for measurement.  Some use fuel cell and infrared spectrometry.  I don’t have the time or space here to discuss all of the problems associated with this machine, but think Pong on the old Atari’s, not Playstation 3.

2. Georgia fails to check the calibration frequently enough.  Georgia only requires that the area supervisor check the machine for calibration once every quarter.  Some states require a calibration check in between the two blow.  Most do it before every test.  If you search for images of the Intoxilyzer online, the device to the right of the machine with the beaker and tubing, is the simulator.  It runs a solution through the machine and the Intoxilyzer checks it. When there is a problem discovered, what happens to all of the people that blew into the machine in the four month period between check?  They are not even told when this happens.

3. Georgia hides the data that the Intox 5000 has the capability of recording.  This data is called COBRA data.  One of the standard features on the Intox 5000 is memory and a modem that records much of the data from each breath sample given on the machine.  It has the ability to transmit this data via modem to a central server for review later.  In Georgia, this functionality has been removed from the machine.  Since we don’t preserve it, the data cannot be reviewed for accuracy, trends, testing errors and officer errors/misconduct.

4. Georgia fails to preserve the breath sample for independent testing.  There is a port on the back of the machine where the expired breath can be expelled to and preserved for later testing.  This is not used in Georgia.

5.Georgia fails to require officers to document machine failures. Georgia only requires officers to document all tests in a log book that sits next to the machines.  The COBRA data is not preserved so these logs cannot be checked for accuracy.  I have clients tell me ALL THE TIME that they blew in the machine 3, 4, 5, 6 times.  Yet the come into my office with one printout showing two blows.  Nine times out of ten, when you get the log, it only shows the last test that they are using to try to convict my client.  What was going on with those other tests?  Was it a problem with the machine?  Was it a problem with the testing environment?

     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.

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

“Push the green button.”

I am not joking…that’s all it takes.  Police officers love to get on the stand and tell you about all of their great training on how to operate the Intoxilyzer 5000 and how they are certified by the GBI to run it.  When he tell you how he set up the machine properly, ran a diagnostic check and tested the ambient air conditions to make sure nothing was going to interfere with the test…consider this.

“Officer, you could train a monkey to give this test couldn’t you?”

He is likely to respond that a monkey couldn’t set up the machine.  What he is referring to is typing in your client’s name, arrest date, license number etc..  If you can hunt and peck on a typewriter, you can run this machine.

Try to explore what the officer know about breath testing and the “science” behind it.  The officers are trained to say that they are not familar with the inner workings of the machine.  Somebody told them that the machine worked, that is it.  Very few actually understand the principles in play with breath testing, they are just drinking the Kool Aid.

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

A Cherokee County Magistrate Judge filling in for a State Court Judge granted a defendant’s Motion for “Full Information “pursuant to O.C.G.A. 40-6-392. Specifically, the defense is requesting the source code for CMI’s Intoxilyzer 5000. Ralph Villani, the defendant’s lawyer, is to submit the Order to the Judge for signature within 7 days. The Judge has indicated that he will grant the State’s interlocutory appeal making this Georgia’s test case on the matter. The same litigation has already taken place in Florida and it ended with the legislature enacting a law that limited the information the defense is entitled to. Check back for more information.

Palmaka II (Palmaka v. State - A06A1060) was published on July 27, 2006 by the Court of Appeals.  It is a bad case for the defense on the issues presented on appeal.  We will go into the substance of that later.  However, the last paragraph may contain a little gold nugget that defense lawyers need to help with attacks on the Intox 5000 in jury trials.  It may make a good jury charge.

“We further note that OCGA 40-6-392(a)(1)(A) provides only for the admissibility of the test results.  A defendant remains freee to challenge the weight and credibility of that evidence before the jury.”

Hmmm…that might be helpful.  Thanks to Jeremy Citron, the eternal optimist, for pointing that out.