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As I’ve indicated with numerous examples in earlier posts, these breath machines which determine guilt or innocence in drunk driving cases are not exactly the reliable devices that law enforcement would have us believe. Yet another example of that unreliability is the fact that the results will vary depending upon the breathing pattern of the person being tested. This has been confirmed in a number of scientific studies.

In one, for example, a group of men drank moderate doses of alcohol and their blood-alcohol levels were then measured by gas chromatographic analysis of their breath. The breathing techniques were then varied. 

The results indicated that holding your breath for 30 seconds before exhaling increased the blood-alcohol concentration (BAC) by 15.7%. Hyperventilating for 20 seconds immediately before the analyses of breath, on the other hand, decreased the blood-alcohol level by 10.6%. Keeping the mouth closed for five minutes and using shallow nasal breathing resulted in increasing the BAC by 7.3%, and testing after a slow, 20-second exhalation increased levels by 2%. “How Breathing Techniques Can Influence the Results of Breath-Alcohol Analyses”, 22(4) Medical Science and the Law 275.

For another study with similar findings, see “Accurate Measurement of Blood Alcohol Concentration with Isothermal Breathing”, 51(1) Journal of Studies on Alcohol 6.

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

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

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

DUI BLOG

In my last post (Hundreds of DUI Convictions in Doubt: Inaccurate Breathalyzers), I featured a news story about widespread breathalyzer failures in San Francisco.  I also mentioned that this was not an isolated situation, pointing out massive failures of the devices in other cities across the country.

In a follow-up yesterday, the San Francisco Chronicle has confirmed this:

SF Not Alone in DUI Test Flaw, Dropped Convictions

San Francisco, CA.  Mar. 12 – In facing the possible loss of hundreds of drunken-driving convictions because of a testing controversy, San Francisco is not alone.

District Attorney George Gascón said last week that his office was reviewing cases going back to 2006 because of possible police mismanagement of the breath-test devices used to measure drivers’ blood-alcohol levels. Public Defender Jeff Adachi said as many as 1,000 convictions could eventually be overturned.

Other jurisdictions, including Santa Clara County and Ventura County, have had to drop some drunken-driving convictions because of problems with faulty or mishandled breath-test devices – although fears of mass dismissals have proved unfounded.

San Francisco’s troubles began when attorneys with the public defender’s office discovered suspicious bookkeeping in the Police Department’s accuracy testing of the devices. The entries suggested that officers weren’t conducting the checks at all.

A similar situation in Philadelphia last year resulted in the district attorney offering new trials to nearly 1,500 people who had been convicted of driving under the influence over the previous 15 months.

Police there revealed in March 2011 that four breath-test devices – different models from those used in San Francisco – had not been properly calibrated, said Tasha Jamerson, a spokeswoman for the district attorney’s office…

Officers in the field there ask suspected drunken drivers to exhale into portable testing devices to estimate whether a driver’s blood alcohol level is above the legal limit of 0.08 percent. In April 2010, Santa Clara County authorities learned that condensation was building up in the device, the Alco-Sensor V, that San Jose and Palo Alto police had been using for nearly all of 2010, resulting in erratic readings.

The device was a newer model of the Alco-Sensor IV that San Francisco police and many other Bay Area law enforcement agencies use…

Ventura County dismissed at least 64 cases in 2011 because of the same condensation glitch, said Senior Deputy District Attorney Stacy Ratner.

Intoximeters, the Missouri company that makes the Alco-Sensor devices, did not respond to requests for comments…

Although the news story only mentioned California counties, as well as Philadelphia, the widespread unreliability of these machines — upon which criminal convictions are based — goes far beyond that state.  See, for example, Attorney General Finds Widespread Breathalyzer Inaccuracies: Police Shut Down All Machines, 400 Wrongly Convicted in Washington: Faulty Breathalyzers and More Massive Breathalyzer Failures.  

For a confidential government document verifying the unreliability, see Report: Breathalyzers Outdated, Unstable, Unreliable.

(Thanks to Andre Campos.)

DUI BLOG

As we all know from watching TV, the police are always very careful to preserve the evidence in criminal investigations. Except in DUI investigations.

What is the single most important piece of evidence in most drunk driving cases? The breathalyzer test. In fact, it’s the only evidence of the crime of driving with over .08% blood alcohol. And it’s pretty important for the “driving under the influence” charge, too: the law presumes the defendant is under the influence if the test result is .08% or higher. Evidence just doesn’t get more important than that.

So, of course, the police are careful to preserve the breath sample, right? I mean, there may be some question later of whether the machine was working correctly; it would be a simple matter to save the sample so it could be tested again on another machine. And, hard to believe, but the defense may not want to just take the officer’s word that he administered the test correctly and that the test results were from the defendant.

Unfortunately, the breath sample is routinely destroyed moments after it is tested.

But how can this be? That’s a question that was asked a few years ago by a defendant in California appealing his DUI conviction. The Court of Appeals of that state agreed and reversed the conviction:

Due process simply demands that where evidence is collected by the state, as it is with the Intoxilyzer, or any other breath testing device, law enforcement agencies must establish and follow rigorous and sytematic procedures to preserve the captured evidence or its equivalent for the use of the defendant. People v. Trombetta, 142 CalApp.3d 138 (1983).

How hard is it to save the defendant’s breath sample for later retesting? The Court noted that a “field crimper-indium encapsulation kit” was readily available, cheap and approved by the California Department of Health Services. So why isn’t the evidence saved in DUI cases today?

The Trombetta case was appealed by the state to the United States Supreme Court….where it was reversed:

Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means. Neither of these conditions is met on the facts of this case. California v. Trombetta, 467 U.S. 479 (1984).

What? Neither of these two conditions is met in a DUI case? Let’s take another look at the Supreme Court’s test…

1. The possible value of the defendant’s breath sample in helping prove innocence was not apparent before it was destroyed…..What? The machine never makes mistakes? It was not apparent to the police that a re-analysis of the all-important breath sample might be of any value to the suspect?

2. The defendant was able to “obtain comparable evidence by other means”…..How? He has no access to another breath test. At best, he might be able to get a blood test at a hospital, if the police let him — but it would probably be so much later that it would not be relevant or even admissible in court.

Another example of “The DUI Exception to the Constitution”.

It’s interesting that the New Hampshire Supreme Court later rejected the Supreme Court’s reasoning, and relied upon its own state constitution in requiring breath samples to be saved:

A suspect would face numerous practical difficulties in obtaining a second sample on his or her own. While in police custody, the suspect would have to locate an available, licensed technician capable of promptly performing a second test, no matter what time of day or night. Even if a defendant successfully obtained an independent second test, the results would not have the same evidentiary force as would a second test performed on the same machine at approximately the same time. Opinion of the Justices, 557 A.2d 1355 (1989).

The Trombetta decision was, as intended, a huge green flag to police agencies across the country: Go ahead and destroy the main evidence — but only in DUI cases. And law enforcement agencies have happily complied.
 

DUI BLOG

Following up on yesterday’s post (Grand Jury Investigates Breath Test Accuracy – Throws D.A. Out), here are the latest fascinating developments in a Houston grand jury’s investigation into cover-ups by police and prosecutors of defective breath-alcohol machines.  

Keep in mind what we’re talking about here: this is the District Attorney’s office –charged with finding truth and achieving justice — trying to ensure convictions of possibly innocent citizens by hiding that truth from the public.  And this is a grand jury – normally used as a tool by the D.A. — turning on their masters and throwing prosecutors out of the hearings.

Four Harris County Assistant DAs Subpoenaed in BAT Van Investigation


Houston, Oct. 25 - There are new developments in our investigation into how the Houston Police Department and the Harris County District Attorney’s Office handled complaints about unreliable DWI testing. It’s a story we’ve been following for months and now more evidence that a secret grand jury is also trying to get to the bottom of just who knew what and when.

Four Assistant District Attorneys Tuesday were ordered to testify to the grand jury and, to make it worse for the DA, a special independent prosecutor is about to be named.

The ADAs all tried DWI cases and likely know if supervisors downplayed faulty DWI tests. The grand jury is still meeting in secret, but it’s becoming clear they are zeroing in on a possible cover-up within HPD or the DA’s Office.

What is happening inside a Harris Co. Grand Jury room this month cuts right at the heart of how the DA prosecutes cases.

"This could be catastrophic. Anyone who’s been arrested involving these mobile vans could have their cases overturned," said KTRK Legal Analyst Joel Androphy.

With four ADAs and a current judge called to testify, it’s clear the grand jurors want to know what prosecutors knew about potentially bad DWI evidence, when they knew it and what their bosses told them to do about it.

"It’s not OK to cover up unreliable evidence; period," said Tyler Flood, a DWI defense attorney.

On Monday, Harris Co. District Attorney Patricia Lykos told Eyewitness News she never knew about the problems with the BAT vans until they came out in open court in July.

"The Houston Police Department Crime Lab has never notified us of any questions or any issues with respect to the BAT vans, and that includes as of today," Lykos said.

And that’s true if you listen very carefully. Officers from the crime lab never came to her office. But other police officers spoke up months earlier. She didn’t tell us about that.

In court testimony, one police officer testified he knew of issues a year before and told prosecutors about them more than once without questioning the admissibility of the evidence.

The lawyer for the whistle blower in the case says the DA isn’t telling the whole story.

"She should’ve kept her mouth shut," said attorney Chip Lewis.

But Lewis says the DA isn’t the only one who should be concerned; he’s convinced this grand jury will want answers from HPD as well.

"It’s clear to me that HPD broke the law. Whether it’s a civil law by retaliating on Amanda Culbertson or the criminal law of official oppression, I will let the grand jury make that determination," Lewis said.

With the addition of a special independent prosecutor, that grand jury investigation just got a lot more serious.

"You start with people who were the messengers, then work up to the supervisors and work your way up to determine if there was a cover-up," Androphy said.

Amidst all the claims of cover-up, none of it’s been proven and the DA continues to insist they did nothing wrong.

The special prosecutor has not been named, but once that person is on the job they will help the grand jury figure out if a crime has been committed.

Here’s a look at a timeline in the BAT van investigation:

     Our 13 Undercover investigations exposed maintenance problems with the BAT vans back in March.

     Emails we uncovered about the Breathalyzer accuracy prompted attorneys to challenge DWI cases connected to the vans.A hearing was held in July where

     Culbertson openly testified about the lack of response to the BAT van issues.

     In October, Harris County commissioners terminated a contract with Culbertson’s current employer to provide DWI testing in the county.

     Last Friday, Eyewitness News first reported that the grand jury appeared to be investigating how the DA’s Office and HPD handled reports of the BAT van                  problems.

     Today, we confirmed four prosecutors have been subpoenaed in that investigation.
 

And yesterday:

Prosecutors Named in BAT Van Case


Houston, Oct. 26 – State District Judge Susan Brown on Wednesday named attorneys Stephen C. St. Martin and James Mount as temporary prosecutors to assist a grand jury apparently investigating the Houston Police Department’s troubled mobile alcohol testing program.

The order appointing St. Martin and Mount, both former assistant district attorneys now in private practice, states that grand jurors are investigating “possible criminal conduct by members of the Harris County district attorney’s office.”

“After considering the grand jury’s request and the applicable law, the court finds the Harris County District Attorney and her office are disqualified from participating in the grand jury’s investigation,” Brown wrote.

Brown did not immediately rule on the grand jury’s request that its term, scheduled to end in late November, be extended.

The grand jury gained attention last week when it excluded prosecutors from listening to witnesses testifying in secret proceedings. On Tuesday the grand jury heard testimony from prosecutors under subpoena, providing further evidence that the panel is examining the role the DA’s office has played in cases involving breath alcohol testing vehicles known as BAT vans.

Stay tuned…. 

DUI BLOG

My past two posts have dealt with the Houston grand jury investigating cover-ups of breathalyzer problems by the District Attorney’s office.  In related developments in this fascinating saga, a defense attorney representing a client charged with drunk driving has subpoenaed the District Attorney for the trial:

Harris County District Attorney Called to Testify in DWI Trial  

Houston, TX.  Oct. 28 – A day after the revelation that her office is the target of a grand jury investigation, District Attorney Pat Lykos was called to testify Thursday in an ongoing DWI trial because she made public comments regarding the accuracy of results from the Houston Police Department’s troubled mobile breath-testing vehicles.

"The reliability of the BAT [breath alcohol testing] vans has come into serious question by the chief prosecutor of Harris County herself," declared Jackie Carpenter, a defense attorney in the DWI trial. "If they’re so unreliable, then why are you prosecuting someone with evidence you deem unreliable?"

Reversing an earlier decision to compel Lykos to testify, County Court at Law judge John Clinton ruled Thursday that the top prosecutor’s opinions on the breath-alcohol testing vehicles – known as BAT vans – are relevant in the DWI trial.

An assistant district attorney, one of more than 240 under Lykos’ authority, is handling the misdemeanor case. If Lykos appears, she could be cross-examined by one of her own prosecutors.

The testimony could affect dozens of past and future DWI cases that relied on evidence handled by the testing equipment in the vans.

Even more serious is the possibility that Lykos and other prosecutors had doubts about the tests’ accuracy while prosecuting past DWI cases but did not alert defense attorneys…
 

Fascinating stuff.  The public is finally getting a look behind the so-called "state of the art" magical machines used to convict citizens.  The readings from these machines have been deemed so reliable that, by law, they are deemed sufficient "proof beyond a reasonable doubt" to convict.  As I’ve been saying for years, however, these machines are little more than "pseudo-science".  See, for example, How Breathalyzers Work (and Why They Don’t), Why Breathalyzers Don’t Measure Alcohol and Report: Breathalyzers Outdated, Unstable, Unreliable.
 

DUI BLOG

I have mentioned that a primary problem with blood alcohol analysis is that the no two individuals are alike in their physiology and metabolism of alcohol (see, for example, Convicting the Average Person, Racial Differences in the Metabolism of Alcohol and High Blood Alcohol – or a Zinc Deficiency?. Further, many foreign compounds can influence attempts to measure blood alcohol levels (see, for example, Under the Influence…Gasoline?, Asthma Inhalers Can Cause High Breathalyzer Results and Driving Under the Influence of…Paint?.

One of many other factors that render attempts to estimate an individual’s blood alcohol concentration at a given point in time is smoking.

A scientific study has found that cigarette smoking can influence absorption by the body of alcohol – and thus, among other things, attempts to estimate earlier blood alcohol levels when driving based upon tested levels. Johnson et al., "Cigarette Smoking and Rate of Gastric Emptying: Effect on Alcohol Absorption", 302 British Medical Journal 20 (1991).

The researchers reported testing blood samples of a group of smokers for blood alcohol levels both after smoking and after prolonged abstinence. The result was that "areas under the venous blood alcohol concentration-time curves between zero and 30 minutes and 60 minutes and the peak blood alcohol concentrations were significantly less during the smoking period compared with the non-smoking period". (Emphasis added) Gastric emptying was also found to be slower during the smoking evaluation.

The scientists concluded that the effect of smoking on alcohol absorption has "considerable social and medicolegal relevance", and that the ingestion of nicotine should be taken into when dealing with alcohol metabolism.

Non-specific analysis is another problem causing breath machines to give false readings when the subject is a smoker. As I mentioned in an earlier post, Why Breathalyzers Don’t Measure Alcohol, breath machines are actually designed to report the presence of any compound containing the methyl group in its molecular structure, not just alcohol. They cannot distinguish the difference between alcohol and, say, acetaldehyde.

Acetaldehyde? That’s a compound produced in the liver in small amounts as a by-product in the metabolism of alcohol. Unfortunately, alcohol moving from the blood into the lungs has been found to metabolize there as well – and, thus, to produce acetaldehyde there. The amount of acetaldehyde produced in the lungs varies from person to person. However, scientists have found one interesting fact: acetaldehyde concentrations in the lungs of smokers are greater than for non-smokers – far greater. Translated: smokers are more likely to have falsely high readings on a Breathalyzer. "Origin of Breath Acetaldehyde During Ethanol Oxidation: Effect of Long-Term Cigarette Smoking", 100 Journal of Laboratory Clinical Medicine 908.

End result: because breathalyzers can’t tell the difference between alcohol and acetaldehyde, a higher blood-alcohol reading. And if you are a smoker, a much higher reading.
 

DUI BLOG

Want to trick that breathalyzer into a false reading? Not that difficult: just change your breathing pattern.

As I’ve indicated in literally hundreds of earlier posts, these breath machines which determine guilt or innocence in DUI cases are not exactly the reliable devices that law enforcement would have us believe. (See, for example, How Breathalyzers Work – and Why They Don’t, Why Breathalyzers Don’t Measure Alcohol and How Accurate Are Breathalyzers?.)  Yet another example of that unreliability is the fact that the results will vary depending upon the breathing pattern of the person being tested.

This has been confirmed in a number of scientific studies.

In one, for example, a group of men drank moderate doses of alcohol and their blood-alcohol levels were then measured by gas chromatographic analysis of their breath. The breathing techniques were then varied.The results indicated that holding your breath for 30 seconds before exhaling increased the blood-alcohol concentration (BAC) by 15.7%. Hyperventilating for 20 seconds immediately before the analyses of breath, on the other hand, decreased the blood-alcohol level by 10.6%. Keeping the mouth closed for five minutes and using shallow nasal breathing resulted in increasing the BAC by 7.3%, and testing after a slow, 20-second exhalation increased levels by 2%. "How Breathing Techniques Can Influence the Results of Breath-Alcohol Analyses", 22(4) Medical Science and the Law275.For another study with similar findings, see "Accurate Measurement of Blood Alcohol Concentration with Isothermal Breathing", 51(1) Journal of Studies on Alcohol 6.

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

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

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

DUI BLOG

Ok, I’ve posted ad nauseum about how breathalyzers are inaccurate and unreliable.  See, for example, How Breathalyzers Work (and Why They Don’t.  And I’ve printed numerous articles in recent months about massive failures of the machines across the country, leading to questions concerning the wrongful convictions of hundreds of citizens.  See, for example, Attorney General Finds Widespread Breathalyzers; Police Shut Down All Machines (2 months ago),  Inaccurate Breathalyzers Cast Doubt on 1,147 DUI Cases in Philadelphia (just over a month ago),  More Defective Breathalyzers (hundreds of convictions in Ventura, CA – 2 weeks ago),  400 Wrongly Convicted in Washington: Faulty Breathalyzers.   

If you still think they were aberrations, read today’s news:
 

Santa Clara County DA Reviewing 865 San Jose DUI Cases After Breathalyzers Deemed Faulty 

San Jose, CA.  May 4 — A faulty breathalyzer used by San Jose police to arrest 865 DUI suspects could lead to drivers walking free — even if they were drunk behind the wheel, authorities revealed Tuesday.

The Santa Clara County District Attorney’s Office said it would undertake a special monthlong review to determine how many of the cases it would drop because San Jose police officers used the Alco-Sensor V breathalyzer as part of their field sobriety tests. The breathalyzers — one of the methods used by officers to determine whether to arrest DUI suspects — may have shown incorrect readings because of a manufacturer’s error that can cause condensation to build up in the tube…

San Jose officers had been using the device exclusively since November but stopped Friday after discovering the tests are not reliable. County crime lab officials, prosecutors and police began looking into the breathalyzers after discovering that Ventura County authorities began reviewing hundreds of similar cases more than a week ago.

An unknown amount of DUI cases in Palo Alto, where officers have been using the device since April 2010, could also be affected. The San Mateo County DA was not expected to know until Wednesday whether any cases there were suspect…

San Jose police said all 60 breathalyzers its officers used in the past five months were the defective Alco-Sensor V’s, until they sent them back to the manufacturer on Friday night. The department received a shipment of 30 older, nondefective models from the same company Saturday morning and has been using them since.

The company that makes the gray and yellow instruments, St. Louis-based Intoximeters, says on its website that the breathalyzer was approved by the U.S. government’s National Highway Traffic Safety Administration.
 

Still confident that the breathalyzers used in your city are accurate?  Accurate enough to convict your fellow citizens — beyond a reasonable doubt? 
 

DUI BLOG

If you are accused of DUI or DWI, a reading results in a legal presumption of guilt; if charged with driving with a blood-alcohol content of .08% or higher, the machine is the only evidence of blood-alcohol.  In essence, either way you will be facing a "trial by machine".

So how good are these machines?  Good enough to constitute "proof beyond a reasonable doubt"?  Or are they just "close enough for government work"?

As regular readers know, one of my pet peeves is the unreliability and inaccuracy of breathalyzers (or, more accurately, any of the various breath testing models sold by a handful of manufacturers).  See, for example, Breath Alcohol Testing: "State of the Art?, Why Breathalyzers Don’t Measure Alcohol and Report: Breathalyzers Outdated, Unstable, Unreliable. 
 

D.C. Attorney General Drops Drunk Driving Cases

Wash. DC.  Feb. 8 — The District’s attorney general has dropped dozens of drunken driving cases since Jan. 31 and hundreds of others could be dropped as the police department shuts down its troubled alcohol breath-test program. Problems dating back more than three years with the city’s breath analyzers were first revealed in February 2010, when it was discovered the machines’ results were inaccurate. Since then, the D.C. medical examiner’s office has refused to sign off on the accuracy tests of new analysis machines, officials said.

"The alcohol breath-analysis program? It doesn’t exist anymore," said Ilmar Paegle, who discovered problems with the Intoxilyzer 5000s soon after he took over the city’s breath-analysis program on Feb. 1, 2010. Paegle’s contract ended last week. As he left, he said, the police department pulled off the street the Intoximeter, which replaced the Intoxilyzer last spring. "It’s a royal mess," Paegle said.

A spokeswoman for D.C. Attorney General Irvin Nathan said he couldn’t be pulled from a meeting to comment Tuesday. Nathan dropped eight more drunken driving cases Tuesday.

City policy requires the medical examiner’s office to certify the program, and it has not done so, citing concerns raised by the problems with the previous models, Paegle said. Although officers had been using the Intoximeters, the results were not being included as evidence, according to Paegle and internal police e-mails obtained by The Washington Examiner.

The medical examiner’s office declined to comment, citing pending litigation. Dozens of defendants have sued the city after being convicted on potentially faulty breath-test results.

Assistant police Chief Patrick Burke said officers are now taking urine samples to test blood alcohol levels for potential future prosecutions.

Meanwhile, the two police officers who account for a third of the city’s 1,400 annual drunken driving arrests have had their trial testimony called into question. They are the subjects of an internal affairs investigation that began after they spoke out about problems with the breath analyzers.

Officers Jose Rodriguez and Andrew Zabavsky learned that the medical examiner hadn’t signed off on the program and began mentioning that in their trial testimony last spring, according to an e-mail from Zabavsky to police Chief Cathy Lanier. Later in the spring, the attorney general’s office began an investigation into the officers, saying a woman they arrested for driving under the influence in June 2009 had complained the two watched her take a urine test.

In December, the case was turned over to internal affairs.

"On a day-by-day basis, cases are being dismissed because the officers involved are being investigated," said defense lawyer Bryan Brown.

The result, police union chief Kris Baumann said, is "our ability to enforce DUI laws in the District has been crippled".

The breathalyzers involved are the most commonly used across the country.  Do you really think only those in Washington D.C. are giving false results? 

DUI BLOG

As I have said in earlier posts, law enforcement investigation techniques depend largely upon the fictitious premise that all humans are physiologically identical (see “Convicting the Average DUI Suspect"). Without that presumption, field sobriety and breath alcohol tests would not be possible. I have previously discussed many examples of physiological differences — from person to person and within one person from moment to moment — which will directly alter breath or blood alcohol testing (see, for example, “Diabetes and the Counterfeit DUI”, “GERD, Acid Reflux and False Breathalyzer Results" and "The Effect of Anemia on Breath Tests").

Yet another example of variability is body temperature. Put simply, an individual’s body temperature will have a direct effect on the results of a breath test. The effects of changes in body temeprature from the norm of 98.6 degrees on breath testing has been discussed in an article entitled “Body Temperature and the Breathalyzer Boobytrap”, 721 Michigan Bar Journal (September 1982). If because of illness, for example, the body temperature is elevated by only 1 degree Centrigrade (1.8 degrees Fahrenheit), the 1:2100 breath-to-blood partition ratio will be affected so as to produce a 7 percent higher test result. Higher body temperatures will, of course, result in greater errors.

You don’t have to be sick to have a higher body temperature. Dr. Michael Hlastala, Professor of Physiology, Biophysics and Medicine at the University of Washington, confirms this — and the effects on breath test results. In an article entitled “Physiological Errors Associated with Alcohol Breath Testing”, 9(6) The Champion 18 (1985), he comments that even the average body temperature of a normal, healthy person “may vary by as much as 1 degree Centigrade above or below the normal mean value of 37 degrees Centigrade — or 1.8 degrees from the mean value of 98.6 degrees Fahrenheit”.

Not only can the normal mean body temperature of an individual vary from that of other persons, but the “temperature of any individual may vary from time to time during the day by as much as 1 degree Centigrade”. Result? The partition ratio for alcohol in blood is altered — meaning, according to Professor Hlastala, a 6.3 percent error for every 1 degree Centigrade increase or decrease from the presumed normal body temperature.

Yet another example of how breathalyzers are not actually testing you, but rather an “average” person who does not exist.
 

DUI BLOG