Breath Testing Information - What Every Citizen MUST Know

OVERVIEW.  For over 22 years, drunk driving laws have been getting tougher and tougher.  In virtually every state, the legislative branch ANNUALLY passes new laws, or increases punishment for existing laws.  Why?  It is due to the relentless pursuit of “prohibition” by MADD in our state legislatures each year.  Once the legislative branch “acts” in response to the MADD pressure (now fully supported by the Federal Government through NHTSA) the trial courts and appellate courts fall in line and mete out severe punishment, as directed by the legislature.  Our jails are full to capacity, with many jail cells housing three to four times the number of prisoners they were designed to accommodate.  In 1995, Georgia changed its DUI laws THREE times in less than 9 months!  The trend is for the laws to get more Draconian each year, and (in doing so) we lose more rights as citizens.

MUST I GIVE A TEST?  When a driver is suspected of DUI / DWI / OUI / OWI (or however your state has opted to abbreviate it), an officer is given the statutory “option” of asking that you submit to a chemical test of your breath (most common type test), or blood, or urine, OR ALL THREE (in some states, like Georgia).  The majority of states permit a person to REFUSE to submit to testing.  In most cases, the police officer will have asked you to first perform field sobriety tests, but these field evaluations ARE NOT mandatory.   In others, (e.g., South Carolina), the officer suspecting alcohol as the impairing substance can only ask for breath, barring a vehicular homicide or other extenuation circumstances.  In others, (e.g., California), the officer must ask for breath, but verbally advise you that the California breath test does not provide a sample for later independent testing (by you or your legal counsel), so you can OPT for a blood test, if you so desire.  Others offer you the chance to be tested “the easy way”, by blowing into a breath machine, and if you try to resist, you can be PHYSICALLY wrestled to the ground, beaten, choked or even strapped to a table or gurney so that blood can be drawn from your body or urine can be extracted through a catheter inserted in your penis or urethra.  Yes, we are talking about a garden-variety, misdemeanor DUI / DWI case in the United States of America, without serious bodily injury or death.  Yes, we are talking about these unbelievable acts being LEGALLY sanctioned by some of our more pathetic appellate courts across America.

IMPLIED CONSENT LAWS AND TYPES OF TESTS OFFERED.  This “option” for officers to ask (DEMAND in some jurisdictions, such as Nevada and Michigan) that you submit to EVIDENTIAL breath testing or EVIDENTIAL blood testing (i.e., the police PLAN to use it against you in court to convict you) is called “implied consent” or “informed consent”.  The idea developed from a legal fiction whereby the government agreed that if a person opted to drive on the state’s roadways, and thereby obtained the “benefit” of this public expenditure of money, then the person also IMPLIEDLY agreed to submit to giving a sample to the police so that analysis for alcohol (and drugs) can be performed. 

In the last decade, some state governments began to actually ADD this printed language to the driver’s license application forms REQUIRED of its licensed drivers, effectively FORCING the person to agree in writing to give breath, blood or urine at the request of a law enforcement officer who may suspect you of driving while impaired.  In law school, we were taught that this is the classic ADHESION contract, whereby one party (without any real bargaining position, was FORCED to sign an unfair agreement when no viable option---EXCEPT to sign---exists.

PENALTIES FOR “REFUSAL”.  In the states where Gestapo-type brutality is NOT permitted to be used to force a test from your body, the usual “penalty” for not taking a “chemical test” (i.e., a blood, breath or urine test, to determine what “chemicals” are in your body) is most commonly LOSS OF LICENSE [or, loss of DRIVING PRIVILEGES in that state if your are licensed by another state at the time of your arrest].  A few states have passed additional laws penalizing the driver who refuses to be tested with monetary penalties or other similar sanctions, but there are limits to what punishment can be exacted against a person who chooses NOT to incriminate himself/herself.  The length of a suspension/revocation depends on state law, and varies widely.  Some states allow a “work” permit after a refusal; others (i.e., Georgia) do not.   Check your state’s laws by contacting knowledgeable legal counsel.

PENALTIES FOR TAKING THE TEST, BUT BEING “OVER” THE LIMIT.  All states now have “administrative” license suspension (or revocation) laws.  Lawyers, police officers and your DMV / DPS / MVR / BMV office call these “ALS” or “ALR”.  The administrative suspension DIFFERS from a suspension for a criminal conviction, and is generally codified under a different part of state law.  In most states, the administrative “action” taken against your license is ADDITIONAL to any action that may be taken after conviction occurs.  Clearly, this is double punishment, but our highest courts have universally said, “That’s okay, if the legislature wants to do it that way, because driving is a privilege, not a “right”.  As with “refusal” penalties, the length of a suspension/revocation depends on state law, and varies widely.  Some states (i.e., Georgia, but only for first offenders in five years) allow a “work” permit after a refusal; others do not.  Check your state’s laws by contacting knowledgeable legal counsel.

HAVE MY RIGHTS BEEN VIOLATED?  Because the laws vary widely from state to state, reference to your own state’s laws it is critical [in every DUI / DWI / OUI / OWI prosecution] to determine whether by the arresting (or testing) officers violated any of YOUR LEGAL RIGHTS .  Some state’s appellate courts have been very liberal in upholding the strict mandates of their “implied consent” statutes (i.e., either the officer followed all the rules or the test would be subject to being EXCLUDED from the State’s evidence at trial).  The appellate courts of other states have turned a blind eye toward these statutes, almost always finding a way to UPHOLD a conviction (or to reject a pre-trial challenge seeking to suppress the test).  If your legal rights have been violated, both the criminal case AND the ALR / ALS (administrative action against your license for having taken a test and being over the state’s BAC limit) may be subject to being dismissed (or “rescinded”- i.e., lifted) so that no suspension or revocation can be maintained against your driving privileges.

HISTORY OF BREATH TESTING DEVICES.  Breath testing devices in America have been in use since the early 1940’s, although the first ones were crude, highly inaccurate pieces of equipment.  They were also subject to extreme operator error, if not operated correctly.  Robert Borkenstein of Indiana patented the best of the early devices in the early 1950’s.  The device was called “The Breathalyzer®”, and was still in use in some states (i.e., New Jersey and South Carolina) up until the late 1990’s.

MACHINES BEING USED IN THE U.S.A.  Today, if you submit to BREATH TESTING in the United States, you will almost certainly be tested on one of these “infrared” machines (or “instruments”, as police officers are trained to refer to them):

Intoxilyzer® 5000 or 1400 [portable unit for Batmobile use] series (America’s most widely used breath test machine)

BAC Datamaster® (America’s second most common breath machine)

Intoximeter® EC-IR (Used in a handful of states)

Draeger® 7410 (German manufacturer that has placed its machine in about 6 states, so far)

Each of these devices has its strengths and weaknesses, and can be attacked in court by a knowledgeable criminal defense TRIAL attorney specially trained in fighting drunk driving cases.  All of them utilize INFRARED LIGHT passing through a sample chamber (where the breath is passing through) and/or electrically charged “plates” (fuel cell devices) which attract and “count” ions of alcohol as their “measuring” tool.  Like any “machine”, all breath testing devices are subject to variance, from systematic error, random causes, or mere sampling variability endemic to all breath testing devices. 

A troubling trend seems to be emerging in a few states.  Handheld fuel cell devices (which run on batteries) are being allowed for EVIDENTIAL testing purposes, not just preliminary screening for alcohol.  The devices that come equipped with an on-board printer CAN provide an evidential result (i.e., a piece of paper bearing the time, quantity and other data to introduce as an exhibit in court).  However, the likelihood that these devices could generate a flawed and unreliable test result is greater than if testing was conducted on a stable, desktop infrared machine like those outlined above.

ALL TESTS ARE SUBJECT TO LEGAL CHALLENGE.  Regardless of whether the result CLAIMED by the state is close to the state’s legal limit (e.g., a 0.083 result in a state having a legal limit of 0.080) or DOUBLE (or more) the maximum limit for you state, a trained trial attorney MAY be able to find a viable explanation about why the machine’s results cannot be trusted.  See Case 3 and Case 6 as two examples of cases the author won despite police breath tests more than double the legal limit.

IF IT AIN’T GOOD ENOUGH FOR ALABAMA … .In the late 1990’s, the State of Alabama’s own “state lab” conducted experiments on the Intoxilyzer® 5000 devices then in use across that state.  Their findings, basically showing that substantial error (plus or minus 25%) in the “readings” could falsely accuse a driver who had an elevated breath temperature (due to a variety of causes) led to Alabama abandoning the Intoxilyzer® 5000, and installing (at tremendous replacement cost) the new German machine by Draeger® which measures the breath temperature and adjusts the “reading” DOWNWARD (in favor of the test subject) when the body temperature is higher than normal.  Other states [e.g., NY, NJ, WI] have also dropped the Intoxilyzer® (or Breathalyzer®) in favor of the Draeger® machine, or the EC-IR®.

BREATH TESTS ARE IN NO DANGER OF BEING REPLACED.  States continue to use breath testing due to its easy, non-invasive (i.e., no blood being drawn), inexpensive and FAST.  This gets the officers back out on the highways to look for more “drunk drivers”.  Having an attorney who is trained to know (and, where appropriate, to attack) the breath machine’s LIMITATIONS and weaknesses is the first priority if you decide to fight your DUI/DWI case in court.  Helping you FIND A LAWYER with these skills was the primary reason for starting DrunkDrivingDefense.com.  Every lawyer asked to join this web mega site has been screened for trial skills, reputation as a “fighter” and years of practice, to try to provide you with a choice of an advocate in your state capable of analyzing the merits of your case, evaluating your chances at trial and providing you with “informed” choices before you proceed to court.