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Artificially high breath tests...they do happen.

Posted Wednesday, October 24, 2012 by Andrew Charles Huff

As a Washington DUI and criminal defense attorney, I deal with breath tests for alcohol on an almost daily basis. In Washington, we currently use the BAC DataMaster Breath Test Machine, the only approved device for breath testing for alcohol admitted in our courts.But as with the DataMaster and other breath testing devices, the possibility of false positives or artificially high results are always present. In fact, I have represented numerous clients in my criminal defense practice who have submitted breath samples that were clearly artificially high and not an accurate measure of the person’s breath alcohol content. Although the DataMaster has some safeguards to prevent inflated results, they still happen and can be caused by a number of very common things. Here are some primary causes of inflated breath tests:

  1. Mouth Alcohol Decaying food particles trapped between the teeth or in dentures, braces, cavities or impactions can cause alcohol in the mouth. Also latent alcohol from cough syrup, cold medicine, homeopathic preparations, and mouthwash or various breath fresheners can also cause mouth alcohol. Medical issues such as acid reflux, belching and even heartburn or other improper digestion can also cause dramatically increased breath test results. In cases of heartburn, GERD (gastro esophageal reflux disease) or acid reflux, alcohol from the stomach can move to the throat or mouth. When you blow into the breath test machine, the mouth alcohol plus the air in your lungs is measured.

  2. The Machine Also Reads Other ChemicalsPeople who work around chemicals might also absorb these compounds, which may then show up in lung tissue. Such things as nitrous oxide, acetonitrile, ethylene, toluene, isopropanol, if found in the lung tissue of a DUI suspect, can give a falsely high reading on a breath test.

  3. Your Blood Alcohol Level Was Still RisingRemember that in the State of Washington, the law criminalizes driving with a .08 within two hours of driving. But alcohol can take up to 3 hours to absorb fully into the bloodstream. In some cases, a persons’ peak BAC may come at the station when taking the breath test, sometimes becoming twice as high as your level when you were stopped, especially if you consumed the alcohol shortly before the stop. In other words, when you were stopped your BAC level may have been .06 but an hour later at the police station when the alcohol has been fully absorbed, the test can read .12.

  4. DietA high protein, low carbohydrate diet, such as the Adkins diet can produce compounds called ketones, produced by the body during metabolism. After a person consumes carbohydrates, as in drinking alcohol, these ketone bodies in the blood are able to produce another form of alcohol, called isopropyl alcohol.

  5. Natural CausesMany people are simply not suitable candidates for breath alcohol testing due to physical conditions such as chronic lung problems (emphysema, asthma, bronchitis or chronic obstructive pulmonary syndrome) or dental problems. However, these individuals are given the exact same breath alcohol test as everyone else.

I recently had a case in Seattle in which my client suffers from a severe GERD condition. After being stopped for a minor traffic violation, the officer smelled alcohol coming from the vehicle and requested he perform a series of field sobriety test (FST’s), then promptly placed him under arrest for Driving Under the Influence (DUI.) My client was able call me from the station and explain his medical circumstances. I instructed him to explain his condition to the officer, submit to a breath test but then immediately request a blood sample as well. My client’s breath test was above the legal limit. But to the police officer’s credit, he agreed to take my client immediately to a local hospital for a voluntary blood draw. The results? My clients’ alcohol level was well below the legal limit, according to the more accurate blood draw and the case was eventually dismissed.

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Field Sobriety Tests-What do they really tell you?

Posted Tuesday, October 23, 2012 by Andrew Charles Huff

Most of us are familiar with these roadside exercises called Field Sobriety Tests (FST’s) that police officers will administer to people who are suspected of driving under the influence (DUI). We usually envision a motorist pulled over and asked to stand on one foot or touch the end of their nose, always while traffic is whizzing by just feet away with a biased officer staring straight at them while shining a flashlight in their face. Not exactly the ideal conditions to perform roadside agility tests. Besides, what does walking a pretend tightrope have to do with driving a vehicle? The official answer is these tests supposedly measure ones balance and coordination, two traits needed to control a vehicle. There are scientific studies out there conducted for the purpose of showing these exercises are an accurate measure of these traits. But how are the “other factors” taken into consideration, such as nervousness, being cold, naturally poor balance or even that pesky ankle injury you keep tweaking while playing pick-up basketball? The answer? They’re not. Why? Police officers are not trained how to take such factors into consideration. These “one size fits all” exercises are given to everyone in the same proscribed manner regardless of a persons size, weight, balance issues, poor eyesight, bad leg, etc. Besides an eye test or Horizontal Gaze Nystagmus (HGN, police officers routinely use the Walk and Turn test and One Leg Stand test, two physical exercises conducted in a usually tough environment, alongside a road and usually at night. So why not simply ask a person to walk normally 10 steps, turn and walk back as they usually would. Then if a person had trouble doing that, well that would truly tell you something about whether or not they were impaired. But for now, get used to seeing a people standing on one leg and counting to 30 while trying not to notice oncoming headlights. And if you do see them, try not to honk.

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