Pursuant to Kansas statute, DUI suspects are required to submit to a blood, breath or urine test to determine the blood alcohol content of the subject. A refusal to submit to such a test can have more serious consequences than a actually taking the test which has a result with a BAC over .08, which is the legal limit. The consequence is usually more lengthy periods that your license is taken away. Additionally, the prosecutor can use the fact that you refused to take the test as other competent evidence to convince a judge or jury that you are guilty. If you do take the test though, then they may have more objective data to prove you guilty. However, if you do take the test, the presumptions against you and the validity of the test can be questioned and potentially even completely undermined. Below are several ways which the breath test results can be shown to be inaccurate or faulty.
The Intoxilyzer 8000 is the most current breath-testing machine that is used in Kansas. This is the machine that is used when a drunk driving suspect is taken to the police station. This should not be confused with the preliminary breath test (PBT) that was likely used out on the street, at the scene of a DUI stop. The PBT is not admissible as evidence in Court whereas, the results of the Intoxilyzer 8000 usually are.
The manufacturer of the "Intoxilyzer" is CMI, a Kentucky corporation. Though the Intoxilyzer has the potential to be accurate, it is not infallible. Breath testing in general is based upon the principle that there is a direct relationship between the amount of alcohol in a person's deep lung air to amount of alcohol in the person's blood in the aveolar tissue of the lungs. Breath testing equipment is calibrated based upon the assumption that the ratio of alcohol in the air to the alcohol in the blood is 1 to 2100. According, to my expert, whom I have used in DUI cases, there is much potential for error in these machines. The expert I use, Dr. Michael Hlastala, is highly respected and has testified all across the country. He believes that measuring breath is an inaccurate way to measure alcohol in the blood, due to various factors.
The following are potential issues and defenses regarding the Breathalyzer.
Breathing techniques affect the Intoxilyzer 8000 reading. A longer breath sample, may result in a higher BAC reading. Additionally, a person who breaths shallow or holds their breath may accumulate residual mouth alcohol resulting in a higher reading than their true BAC. Hyperventilation may also impair the test.
Numerous reports and scientific articles have demonstrated that the Intoxilyzer 8000 becomes unstable if it is in proximity to any other devices emitting radio waves. A police officer's radio may cast doubt on the accuracy of test results.
MOUTH ALCOHOL AND OTHER SOURCE CONTAMINATION
Breathalyzers rely on infrared analysis of the breath sample to determine how much alcohol is present in a breath sample. A major flaw in the instrument is its inability to differentiate between alcohol in a subject's mouth and alcohol from the lungs (the deep lung air). Thus, these instruments are non-specific for alcohol. Residual mouth alcohol can be created by having foreign objects in the subjects mouth which retain alcohol, such as denture adhesives, chewing tobacco, gum and others. To alleviate this, the KDHE has formed certain regulations and protocol, such as requiring a 20 minute deprivation period, prior to administering the Intoxilyzer 8000.
MACHINE DETECTS OTHER CHEMICALS
The Intoxilyzer has difficulty detecting molecules which have a similar structure to ethyl alcohol. There are many molecules in the methyl group which includes ethyl alcohol. The Intoxilyzer bombards a breath sample with infrared light. The light absorption is then tested based upon the Baer-Lambert theory stating that organic substances absorb infrared energy at different wave lengths. However, there are a number of other similar substances that also absorb infrared light at these wave lengths. Chemicals that are commonly used in wood working or construction may be inhaled, or even a strong presence of chemicals on a person's clothing may be read by an Intoxilyzer as alcohol.
THIS RATIO IS INACCURATE
The ratio between breath and blood vary between individuals. This is critical since a person with a ratio lower than 2100 to 1 will result in an inaccurate and high blood alcohol test result from a breath sample.
Certain illnesses or disabilities may also create chemical reactions in the body which affect an Intoxilyzer reading. A person with heartburn, liver disease or diabetes may have chemical reactions in the body that the impairs a breath sample. . The same can be said of people with certain diets, or those on certain medications. Hyperventilation or sitting in certain positions may also cause sample error on a breath test. Further, the subject's exposure to certain chemicals such as acetone may result in an inaccurate breath alcohol test result.
The temperature of a person's breath can impact the accuracy of a test. The Intoxilyzer is calibrated to test breath at a specific temperature. However, breath samples provided may not always be at this constant temperature. A variation of only one degree may result in a BAC reading that is 7% higher. This was proven by testing people at both the constant temperature, and then placing them in cold water tp raise their temperature, and testing them again.
FAILURE TO FOLLOW KDHE PROTOCOL AND CERTIFICATION
Kansas law requires that the machine be properly certified and that all procedures be followed correctly. Thus, the 20 minutes deprivation period dictated by KDHE (Kansas Department of Health and Environment) must be followed. The subject shall not put ANYTHING in their mouth during this period. Yes, this even includes water. I won a case because we showed that my client put water up to his mouth 19 minutes prior to taking the test. Additionally, the certification must be accurate. This means that the maintenance must be done correctly and the machine was working as designed. Unfortunately, I have dealt with faulty machines on several occasions. The K.A.R. (Kansas Administrative Regulations) specifically deals with the maintenance of the machine and what to do if it is ever taken out of service. I have litigated this issue extensively. K.A.R. 28-32-11(f) discusses device repair. It states that if the machine is taken out of service for repair, then it shall be repaired by the manufacturer or authorized repair service. I have dealt with cases where this issues comes up. These kinds of issues rise up in other states as well. In fact, in 2008, a Texas internal Department of Public Safety investigation revealed that an unnamed Technical Supervisor faked inspection records of the Intoxilyzer. This criminal act has placed more than 2,600 DWI arrests in the Houston-area in question and raised serious doubts about the reliability of the state's alcohol breath testing program.
Intoxilyzer results are challenged by reviewing intoxilyzer maintenance records, intoxilyzer result printouts, police reports, and intake videos. Sometimes tests may be suppressed, meaning that they cannot be used against a defendant at trial. This can often lead to a straight out dismissal by the prosecutor or the prosecutor's case becoming very weak.