Breath Testing -Scientific Doesn't Mean Reliable
The analysis of blood alcohol concentration (BAC) is one of the most complex areas of DUI law. It involves phrases like “gas chromatography” and “infrared spectroscopy.” But as technical and scientific as those words sound, BAC testing can be unreliable, filled with operational mistakes, mis-calibrations and false positives. If you’ve submitted to a BAC test and are facing a DUI charge in Georgia don't think you're doomed, DUI lawyer Elmer (Pete) Young can challenge those test results.
BAC is a measure of the amount of alcohol in your bloodstream at the time of arrest, according to the breathalyzer or a blood test. A reading of .08 or greater is a legal presumption of intoxication in Georgia. Many people think that a .08 or greater is indisputable evidence of guilt. After all, it’s science, it's a modern machine. You blow into the thing, and it gives you this nice, neat number. But they are wrong. BAC readings are not open and shut cases. They can be challenged.
A good Georgia, DUI lawyer will know how to fight a BAC test. It could be through any one or more of the following factors:
- An improperly calibrated breathalyzer
- Gastroesophagal reflux disease
- A false positive triggered by a legal substance already in your body
- The presence of mouth alcohol during a breath sample collection
- The method of procuring the blood sample
- The storage, transportation, or preservation of the blood sample
Just remember, if you drive in Georgia state law says you have given consent to a chemical test or tests of your blood, breath, urine or other bodily substances for the purpose of determining the presence of alcohol or any other drug.
But do not automatically assume the word “guilty” if you took a blood or breath test in your DUI case. Contact Pete Young, a CSRA DUI defense lawyer, to learn more about how you can challenge the government’s science and maybe walk out of the courthouse a free man or woman.
Two Different Tests
Police have been using breath tests to secure DUI convictions for the last few decades. They’re easy to use, inexpensive and less intrusive than other means of proving a driver’s blood alcohol content. Police will have you complete two different breath tests when you are being investigated for DUI. One on the highway when you're pulled over and another after you've been taken to jail.
Intense Defense DUI Attorney Elmer (Pete) Young attended training on the state’s approved breath-testing device, CMI’s Intoxilyzer, and is likely more qualified to use the machine than many of the officers who use it routinely. He also successfully completed the prestigious Forensic Blood and Urine Course on the campus of Emory University in Atlanta, taught by world leaders in the field of forensic science. He is now listed among a select group of attorneys nationally who have completed this forensic course.
And in many cases, the law enforcement officers administering the tests might not know how to use it properly. They are given only minimal training on the device. A good DUI defense attorney will find out whether or not the officer in your case correctly used the machine.
One thing Mr. Young knows for a fact is that there are often problems with the testing devices themselves, and these problems create problems with the results of the tests.
Roadside Breath Testing
Georgia police officers use the Alco-sensor to conduct roadside breath tests. This little machine is so inaccurate that the specific readout isn’t even allowed as evidence against you at a trial. That’s right, police can’t use the device to reliably test your alcohol level. So what’s the point of forcing people to blow into the Alco-sensor? Simple. Police can use it to form probable cause to arrest you. It is also used to show that there was alcohol in your system.
And there are actually two different DUI breath tests that police will have you complete when you are being investigated for DUI.
State-Administered Breath Test
Most counties in Georgia have started to use the recently developed Intoxilyzer 9000. There may still be a few counties using the older Intoxilyzer 5000. This is the breath testing device used at the police station or jail. There are also reliability issues with this machine.
The machine uses the same level of hardware technology that was used in the Atari video game system. Think about that. The State of Georgia is relying on technology in the 21st century developed in the late 1970s to prove a driver is over the legal driving limit of 0.08%.
The margin of error the manufacturer admits exists is +/- 0.005%. That means if you blew a 0.08% your BAC is actually as high as 0.085% or as low as 0.075%. This is the difference between a conviction or a not guilty verdict.
The device manufacturer hasn’t and will not disclose how the machine works. The simplest explanation of the technology is that a light is beamed through the breath sample chamber. The alcohol molecules are absorbed. A detector at the other end of the chamber measures how much light is left. Then a computer calculates the amount of alcohol percentage is in the breath sample.
The manufacturer claims the machine “accurately” determines a person’s blood alcohol content. That may be the case. But there hasn’t been any independent verification that the machine actually does what it says it does. It could just be spitting out a random number.
Several factors may impact the reliability of the breath test to return an accurate description of your BAC. If you are diabetic or hypoglycemic, have GERD, just burped, threw up, are over 65, your body temperature is above or below normal, you have dentures or other dental work, if used mouthwash or took cough syrup before leaving home, chewed certain gums or had a recent head injury the results will likely be inaccurate.
If you are accused of DUI and blew over 0.08% there are several things your DUI attorney needs to investigate as potential defenses.
- Your attorney needs to know your medical history to see if there are any possible medical explanations for your test result. This may show the DA, Judge or Jury that the result shouldn’t be trusted or that it should be thrown out entirely.
- Your attorney needs to know the circumstances surrounding your arrest and the test itself. The Intoxilyzer 5000 and 9000 manufacturer has very specific guidelines on how the machine is tested, maintained and repaired. If the guidelines aren’t followed the test may not be valid. Your attorney may be able to keep it out of your trial.
- If you burped or vomited and subsequently took the test the results may be significantly higher due to mouth alcohol. The officer administering the test is supposed to monitor you for 20 minutes prior to the test to make sure you haven’t burped or vomited too shortly before the test to eliminate mouth alcohol. If the testing procedures aren’t followed, then your attorney may be able to have the result excluded from evidence.
- Experts have also reported that the Georgia machine is biased against women. This bias can exaggerate a result when a women takes a breath test. That exaggerated reading can make all the difference in a close case, with a result close to .08.
In Georgia there is an implied consent law. This means that by driving on the roads in Georgia you are “consenting” to a breath or blood test. You don’t actually have to take the test but if you don’t your driver’s license may be suspended for up to a year. You have 10 days from the day you are arrested to request an Administrative License Suspension (ALS) hearing to challenge that license suspension.