The Process Of Beating An Intoxilyzer Test Following A DUI Arrest

Interviewer: How can one beat breathalyzer tests?

Matthew Nebeker: Yes, and I get that a lot.  When people come in and they sit down and they say, you know, “Well, they had me blowing in the machine, the machine kicked out this number and it printed out a little receipt and they show me the receipt like you get when you fill your car with gas and the gas pump spits it out and says well, here it is right there, it’s got my name on it  and it has me over the limit.  Now, how are you going to beat this case?  Why should I hire you?  It seems pretty compelling evidence against me”.  And then, that’s when I go into explaining to them the problems with the machine. All of the different errors and variables they call it, that can affect the outcome of that number on that receipt.  And the first place I start looking is for police errors, operator’s errors in the machine.

An Officer is Supposed to Check a Subject’s Mouth Prior to Administering a Breath Test

It really starts with back to before the officer gives the driver the breath test, they’re supposed to check them out, they’re supposed to look in their mouth, have to lift their tongue so the officer can see inside the mouth and see if there’s nothing in there that will interfere with the breath test. Once they check their mouth, they’re supposed to wait 15 minutes, they call that “The deprivation period”.  And they’re supposed to wait there and observe the driver and make sure that they don’t put anything in their mouth, make sure that they don’t burp or hiccup or throw up anything into their mouth so that when they have them actually blow into the machine, there’s nothing there that interferes with it.  And theoretically, that helps with the accuracy of the test.

Piercings or Rings in a Tongue Can Affect Breath Test Readings in a DUI Case

I see a lot of cases where the officers didn’t look in the driver’s mouth.  I had one here recently where I was watching the video and before the officer administered the portable breath test, he asked the driver if there was anything wrong or if there’s anything that would cause her not to be able to blow into the portable breath test and the client said, “Well, I have this tongue ring in my mouth”, but the officer didn’t pay attention to that and he didn’t even note that, he just had her blow into the machine. After he took her back to the jail, he had her blow into the Intoxilyzer machine and he never had to take that tongue ring out of her mouth.  In my opinion, and in some of the studies and articles that I’ve read, is that those tongue rings that can be stuff that gets down in the piercing and depending on what kind of tongue ring it is, food can accumulate on it and start fermenting and spoiling and alcohol that she’d consumed earlier could be down in that piercing and on that food stuck to the tongue and stuff like that.

If An Officer Doesn’t Check the Mouth Prior to Administering the Breath Test, then that Test Can be Thrown Out in Court

We filed a motion based on that and the judge heard the case and he took it under advisement, I don’t have a ruling on it yet but that’s just one example of where the officer made an error about this category.  I’ve seen other times where the officer, he’s looked in the mouth, he’s waiting during that observation period and the video if you pulled it from the jail or the station, the officer has gone into another room.  And the video will show that he’s been gone for, you know, 3, 4, 5 minutes and then he comes back and he administers the breath test.  And that’s not what the rule says. So, that’s one way that we can argue and we can say, “Well, that’s very important.  The law says that you have to check the mouth, you have to wait this time and you’re supposed to observe him there in this time”.  And if that doesn’t happen, then that’s one basis to having that breath test thrown out and so, it can’t be used against the driver.  And so, that’s where I always start when I’m defending someone on a breath test case.

Human Variables Inherent in All Drivers Can be Utilized as a Defense Against Breath Tests

If I don’t have that, then I start looking for what they call human variables that are inherent in the drivers that affect all of this.  And these are going to get a little bit technical but the focus of the attack is based on the difference we all have as human beings.  And the first thing that can affect a driver’s case is breath temperature. Now, the machine, when they calibrate it and they set it up, they did a study, we’ve, I think, a few people that’s said 34 degrees is a normal average breath temperature for a human being.  And so, we’re going to assume that the breath temperature coming in to this machine is 34 degrees.  Well, that doesn’t apply to every person in the country.

Changes in the Body Temperature of a Subject Can Also Affect BAC Readings in Breath Tests

If the client has just participated in a lot of physical activity or he’s sick or ill, has an infection or something like that, his core temperature, his body temperature could be up and the machine doesn’t know that.  The machine doesn’t take the temperature of the driver’s breath and then recalculate it, it’s set for one thing just like when you’re buying your gas.  If it’s 350 a gallon, whatever goes through it, that’s what you get. That’s one thing that I can argue to a jury that makes a difference on this.  So, you have a higher breath temperature, you’re going to get a higher alcohol reading.  The studies show that the average breath temperature for people is anywhere from 31 to 35 degrees. That’s a pretty big variable compared to 34. That’s one way to knock down if the person has a breath test number of 0.10, for example, we have an argument and we can knock down that a little bit that number, that 0.10, because of this very reason.  The machine doesn’t take that into account.

The Breathing Patterns and the Mode and Manner of Breathing before Blowing in the Machine

Another thing that comes into play is called the breathing patterns and the mode and manner of breathing before someone blows into that machine can alter that number.  If you’re breathing shallow or like a lot of people get really nervous and they take shallow breaths and their heart rate’s going faster and they’re scared and all this, that can affect the outcome of that breath test once again because we’re talking about the alcohol being absorbed in the stomach, into the blood system, then it has to go under the lungs and we have this exchange of air in the lungs with the blood and so, that’s how the breathing patterns can change that because the air’s exchanging with the blood in the lungs at a different rate and there are scientific studies, so that’s another thing we can put up on the wall to say that with this variable, that 0.10 can be knocked down a little bit more.

The Blood to Breath Partition Ratio Can also be Used to Challenge a Breath Test Reading in Court

We have this thing that I’ve talked about just a second ago, it’s called partition ratio.  And that’s about blood to breath, just that exchange down in the lungs.  And so, they have this calculation, they have this number that says if there is this much alcohol in the blood, then there’s going to be this much alcohol in the person’s breath and so, they’re using this breath ratio just to keep it kind of simple and they just put a standard number in the machine and say, “All people are the same and this is the ratio that we want you to convert”. That doesn’t work because all of these are different, our systems work differently, you know, body ability to absorb and to exchange that air, and there’s studies behind this.  If you move that variable up and down, like it should be for humans because we’re not all the same, then we can say on that 0.10 number, “Well, because of this variable, we can knock it down yet another percentage”, and I’m going to get to those kind of summarized in a little bit on that.

The Quantity of Water Inside Blood Cells is Known as Hematocrit

There’s another human variable that we can add to this chart and it’s called Hematocrit.  And when we’re talking about Hematocrit, this represents how much water in the blood makeup of the blood cells.  So, we’re talking about how much water’s in blood cells.  And if you have a higher Hematocrit, there’s a less water in the blood cell; that means there’s more room for alcohol, okay.  And if you’re a different kind of guy or a lady and you have a lower Hematocrit, you’re going to have less water in your blood cells and you’re going to have less room for alcohol. So, that’s another human variable that the Intoxilyzer machine cannot take into consideration and so, if they just put in one number and say, “This applies to everyone”, and the science doesn’t support that.  And if you explain that, then we can put another notch up on the wall in front of the jury and say, “Well, because of this variable, the Hematocrit variable, we can take this number down another percentage”.

Radio Frequency Interference or RFI Can Interfere with the Intoxilyzer Machine

Right now, we might have that 0.10 knocked down to 0.08 and then we keep building on that. And there are some other ones that are a little more complicated to get into but that’s kind of how it’s done when it comes to the human variables.  Then, we start looking at the variables in the machine itself.  No machine is accurate all the time and there are things that can interfere with any machine.  One of the big ones that can interfere with the Intoxilyzer machine is called the radio frequency interference, RFI for short. And the way that the machine is set up to read the amount of air and the amount of alcohol on that air, if the officer is standing close by or another officer is standing close by the machine and they key up their radio or they have a message coming across the radio about another call or something, that can interfere with the machine and it can interfere with the test result.

In the State of Utah there is No Maintenance on the Intoxilyzer Machine

The prosecution will argue that, “Well the machine has a built-in censor, the machine is supposed to be able to detect if something’s interfering in this process”, and sometimes the machine does work and it’ll stop the test and restart it for radiofrequency interference but we don’t know for sure whether the machine is picking that up or not.  And so, if the officer is, standing next to the machine and he’s giving that breath test and my client’s blowing into it, I don’t know if he’s got his radio turned off or not or if there’s other officers in the area. In our Intoxilyzer program in the state of Utah, there’s no maintenance of the machine.  If the machine breaks, we’ll either replace it or can fix it but when we talk the maintenance, I’m talking like, you go get the wheel changed in your car every 3,000 miles and you tune it up every 50,000 miles or whatever and the Intoxilyzer machine, there’s no maintenance.

The Calibration Process is Another Variable Affecting the Intoxilyzer Programs

On every case, I pull the maintenance records and the calibration records and that’s one of the other variables in the machine is the calibration process. Our law and our Intoxilyzer program says that it has to be calibrated every 40 days, within every 40 days. With that whole calibration process, they don’t have a person come and blow into the machine, what they do is they take a solution that they buy from someone and that tells them that the solution is, you know, 0.08 or whatever they’re using, 0.10 solution and they just push that, they dump this into a container and they warm it up and they push it into the machine to calibrate it.

The Principle of Random Uncertainty States that a Machine Cannot be 100% Accurate 100% of the Time

So, they’re trying to replicate a human being and I just don’t think it’s a good way of checking those machines the way they do it here.  I don’t think they can truly and accurately replicate human breath and with all the variables that we just talked about with a human breathing patterns, temperature, all that has to be just right and so, the calibration, we can make an argument when we’re in front of the jury in trying to defend this breath test that, “Would you want to give your sample on day 35?  It’s been 35 days since anyone’s looked at this machine to see if it’s operating properly”. Sometimes that’s a pretty good argument.  Then, kind of the other machine and variable that we have is random uncertainty they call it.  It’s a fact that no machine is 100 per cent accurate 100 per cent of the time.

There are Many Variables which Can Affect the Outcome of the Intoxilyzer

If we were to take 1,000 breath samples and run them through this machine and we put it on the distribution curve, I don’t know if you ever went to a school where they graded on a curve. Yes.  We take those 1,000 samples, 11 per cent of the 1,000, according to the curve and according to the math, would be spot on. If all the rest of the machine was operating properly, 11 per cent of the samples would be spot on.  44 per cent, just looking at the math, would register above the true breath alcohol sample, so 44 per cent are registering higher than what they normally would be if we look at it from a mathematical perspective, and so that’s just not right and that sits well with some jurors.  They don’t trust this. When you explain how inaccurate this machine is, that the manufacturer doesn’t even warranty it, it’s not maintained, there’s all these variables that can affect the outcome of the machine, you have a good argument to beat this breath test.  I keep saying all the variables and so, I wanted to put some more number to the variables.

A Competent Attorney Can Introduce Reasonable Doubt on the Accuracy of the Intoxilyzer

So, what we talked about the machine’s margin of error, we’re talking about plus or minus 10 per cent, so our argument would be let’s take the 0.10 minus 10 per cent.  Then, we have breathing pattern related errors, plus or minus 15 per cent, so we’ll take that 0.10 minus another 15 per cent.  We have temperature errors.  The study say that’s 8.6 per cent, you have the Hematocrit error, that’s another 14 per cent, so I know you’re not doing the math but if you add those up, that’s 47 per cent margin of error, so that means that 0.10 could be 47 per cent higher where the 0.10 could be 47 per cent lower. That’s reasonable doubt right there and that’s the argument that we make.  Are you going to get on an airplane and while boarding the airplane, the pilot tells you that there’s a 47 per cent chance, you might not make it to your destination, that’s crazy.  Not many people would get on that plane and take that flight; they only have 47 per cent. That’s a quick version of how we attack a breath test case.  We just have to take the time and point out all those factors and make the arguments that you can’t rely on that machine, it’s not trustworthy.  Because of that, there’s a reasonable doubt and they should find the driver not guilty.

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