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BREATH TESTING IN MISSOURI DUI / DWI / OR OTHER DRUNK DRIVING CASES

BREATH TESTING 101: The Basic Concepts of the Intoxilyzer 5000 and the BAC Datamaster, the Breath Machines Most Commonly Used & The Missouri Department of Health Breath Testing Regulations

For an good, introductory discussion of breath testing in DUI / DWI cases in states across the United States, see William C. Head's article, Breath Testing Information-- What Every Citizen MUST Know.

MISSOURI IMPLIED CONSENT LAW

In Missouri, every driver who operates a motor vehicle in the State of Missouri impliedly “consents” to giving a blood, breath, saliva or urine sample to determine the alcohol content of their blood if arrested upon reasonable grounds to believe
they were driving a motor vehicle while in an intoxicated or drugged condition.

The standard used is 0.08% BAC for adults over the age of 21; 0.02% for people Under 21. Under the law, you are presumed to know your rights concerning such testing, and give consent to such tests for the privilege of driving.

MISSOURI BREATH TESTING

While a driver might occasionally be asked to submit to a blood or urine test in a few cases, the most common chemical test requested of a driver in Missouri DUI / DWI / BAC cases is a chemical breath test.

The most common breath machines in Missouri are the Intoxilyzer® 5000 (America 's most widely used breath test machine), and the BAC Datamaster® (America 's second most common breath machine). These machines are commonly referred to by the general public as a “breathalyzer.” The BAC Datamaster is the most common breath testing machine in Missouri, followed by the Intoxilyzer 5000.

Neither of these breath testing machines are "state of the art." There are breath testing machines available which are far more reliable, such as the Draeger Alcotest 7110, but of course, the State of Missouri cannot be bothered with the higher expense of purchasing the more reliable breath machines, despite the fact that most other states are now decommissioning the Intoxilyzer 5000 and the BAC Datamaster due to their unreliability.

Out of the box, the manufacturers won't guarantee that these breath machines are fit for the particular purpose of breath testing! Instills a lot of confidence when you are stepping up to blow in Missouri, and you job and your freedom depends on an accurate breath test, doesn't it?

CMI, the manufacturer of the Intoxilyzer 5000's Statement of Warranty reads:

CMI, Inc. warrants that each new product will be free from defects in material and workmanship, under normal use and service, for a period of one year from the date of invoice to the initial purchaser. CMIs obligation is limited to repairing or replacing, as CMI may elect, any part or parts of such product which CMI determines to be defective in material or workmanship.

Warranty repairs will be performed only at authorized factory service centers. Any part or product considered to be covered by the conditions of this warranty shall be returned, freight pre-paid, to an authorized service center. The repaired or replacement part or product will be returned from CMI pre-paid. Repaired products are warranted for 90 days from the date of repair, subject to the same limitations at this warranty. Warranty coverage extends only to the original purchaser and does not include normal wear and tear, unusual abuse, or use of the product for other than its intended purpose. This warranty is voided if the product is adversely effected by attaching any feature or device to it, or is in any way tampered with or modified without express written permission from CMI.

There are no warranties expressed or implied, including but not limited to, any implied warranties of merchantability or fitness for a particular purpose. In no event shall CMI be liable for any loss of profits or any indirect or consequential damages arising out of any such defect in material or workmanship. As a further limit on warranty and as an express warning, the user should be aware. ~ harmful personal contact may be made with seller's product use in automobiles in the event of violent maneuvers, collision, or other circumstance, even though said products are installed according to instruction. CMI specifically disclaims any liability or injury caused by the products in all such circumstances.

THE INTOXILYZER 5000

The Intoxilyzer 5000 is a common breath testing device in Missouri DUI / DWI cases manufactured by CMI, Inc.. This breath machine utilizes infrared light to measure the methyl compound group in breath, and CMI, Inc. claims the machine only measures ethanol in this group, i.e.—consumed alcohol.

CMI claims that the Intoxilyzer 5000 is 95% accurate in measuring alcohol, but Courts around the country have found otherwise: See State v. Burling, 224 Neb. 725, 400 N.W.2d 872 (1987) where the Nebraska Supreme Court held that the Intoxilyzer breath testing device was only 52.38% accurate, rather than the manufacturer's claim of 95%. CMI also does not give warranty for the breath machine for any particular purpose, as discussed above. In other words, they do not warranty accurate breath testing results!

THE BAC DATAMASTER

The BAC Datamaster is a breath testing machine produced by National Patent Analytical Systems, Inc. This machine is popular due to it's low purchase price. The BAC Datamaster, like the Intoxilyzer 5000, also utilizes infrared technology.

The BAC Datamaster has a feature available which is utilized on similar machines in other states, but which the State of Missouri has not bothered to order: this is a mechanism for inserting a vial to capture and preserve a second breath sample for subsequent analysis, either for double checking or for defense testing.

We as the citizens of Missouri wouldn't want those pesky defense lawyers to be able to test a second sample to refute mistakes in the State of Missouri's first and often only breath test, would we? The BAC Datamaster is also capable of capturing data and of detailed record keeping within the machine, but this, of course, is also a feature the State of Missouri, unlike many other states (those not choosing to discontinue use of this machine all together for a more reliable one), chooses not to utilize.

Why do you suppose that Missouri law enforcement does not want the machine to keep a record of the data on all breath tests (even though it is perfectly capable), including all malfunctions. I bet you do not have to ponder the answer to that question too long.

It is also interesting to note (although sad if your breath test was conducted on a BAC Datamaster) to note that the manufacturer of the BAC Datamaster, National Patent, has discontinued making this breath testing machine, and now focuses on the production of cable cutters.

The company no longer makes repairs, and repairs and replacements are now conducted in each sate which still inexplicably chooses to use this breath machine by often untrained staff.

HOW DO MISSOURI DUI / DWI BREATH MACHINES WORK?

Breath testing machines used in Missouri DUI / DWI cases, such as the Intoxilyzer 5000 and the BAC Datamaster do not attempt to measure a person's “breath alcohol content,” but they instead attempt to approximate “blood alcohol level” by taking the breath result as it goes through and multiplying the result times 2100 to 1.

In general, the breath machines used in Missouri DUI / DWI cases rely on spectroscopy and identifying and quantifying the alcohol compounds in breath using infrared light. All breath testing machines in Missouri DUI / DWI cases utilize infrared absorption or what is called “infrared spectroscopy.”

A simple explanation of this concept is that the breath machine uses infrared light to measure the contents of the breath blown into the tube, and how much infrared light gets “absorbed” in the breath chamber of the breath testing device.

This all sounds complicated, but it really is not. The principle of infrared spectroscopy is based on the scientific notion that every substance either absorbs or reflects light at different wave lengths.

When a person breathes into a breath machine, a sample of the breath is taken into a cylinder, which “measures” the contents of the breath sample with infrared light from a bulb inside of the breath capture cylinder.

At the other end of the cylinder in every breath machines are filter wheels (the exact configuration and number of filters varies from machine to machine but the principles are the same with each breath machine) which allegedly remove contaminants from the breath sample.

While the filter wheels are allegedly removing any contaminants from the breath sample, the infrared light shining on the breath sample causes any alcohol molecules in the sample to absorb light at particular infrared frequencies which the machine detects and measures, before giving out a ticket indicating the results of the breath test.

The light that is absorbed by a sample is related or associated with the concentration of a substance in a sample. The difference between the light that goes in and that light that comes out of a sample measures the absorption of a substance in the sample.

Infrared light is not visible to the naked eye. Infrared light, which the breath machine uses to allegedly measure breath samples for alcohol, runs in the range from 2 microns to 16 microns.

The Intoxilyzer 5000 contains a series of filters, which only allow three wave lengths of infrared light to pass through them. All of these are in the 3.3 to 4.0 micron range. The three wavelengths that the Intoxilyzer 5000 allows in are: 3.39 microns, 3.48 microns, and 3.95 microns.

The Intoxilyzer 5000 does not test based upon full spectrum analysis. A full spectrum analysis is the “fingerprint” of an unknown substance. A full spectrum analysis is where the unknown substance, (the unknown substance in this instance is the driver's breath), is exposed to the full spectrum of infrared light—the full range of 2 microns to 16 microns.

Full spectrum analysis generates a graph which shows the various wave lengths at which infrared light was absorbed by the unknown substance. Because breath machines such as the Intoxilyzer 5000 and the BAC Datamaster are woefully inadequate in that they only measure three wavelengths of the full spectrum of infrared light, they often mistake some other compound for what it believes to be ethanol (alcohol) that the driver has consumed.

DETERMINING WHAT SUBSTANCE IS IN THE BREATH SAMPLE

Perhaps the most common attack on the validity of breath testing in Missouri DUI / DWI cases, is the inability of all breath testing devices to differentiate between Ethanol (consumed alcohol) and many other similar substances commonly encountered in society.

Contrary to what the State of Missouri would have you believe, there are many substances commonly encountered in normal day-to-day life that a breath testing machine such as the Intoxilyzer 5000 or the BAC Datamaster will falsely reads as alcohol consumed by the driver.

Infrared light at the three specific wavelengths discussed passes through the “breath chamber” where some of the light may be absorbed. The breath machine determines how much of that infrared light made it through the chamber.

Breath testing machines such as the Intoxilyzer 5000 and the BAC Datamaster assume that everything that absorbs infrared light at these three wave lengths in alcohol the driver consumed, even though there are many things which absorb light at these three wave lengths (such as acetone, toluene, or common “paint fumes” to name two of dozens of examples).

The breath machines also have an interferant detector which is designed to allegedly detect the presence of other things that absorb infrared light at these same wave lengths, (but I bet you can guess how well it works).

When a breath testing device in a Missouri DUI / DWI case such as the Intoxilyzer 5000 or the BAC Datamaster detects a interferant other than ethanol (alcohol you have consumed) on your breath, there are various messages the machines are designed to print out. As discussed previously, the two main breath testing machines used by Missouri only test for infrared absorption at three specific wavelengths (while other, better breath testing devices utilized in other states test on several other wavelengths besides these three).

You see, it is basic chemistry, but the breath testing devices used in Missouri flunk the course. Alcohol is a member of the methyl compound group. The methyl group has a chemical component of one atom of carbon (c) and three atoms of hydrogen (H). The hydrogen and carbon bonds of the methyl group absorb energy at a range of 3.35 to 3.52 microns. A micron is a measurement of length. This is why the breath testing machines utilized in Missouri DUI / DWI cases measure this infrared range, looking for alcohol.

However, there are numerous other methyl compounds, similar to alcohol, found is the 3.35 to 3.52 micron range: and the breath machines utilized in Missouri DUI / DWI cases, cannot tell the difference, and will often treat them as "alcohol" if they are present on your breath.

In short, lots of items commonly encountered in day-to-day life absorb infrared light at these same three wave lengths in addition to ethanol (consumed alcohol): acetone, toluene, menthol, and hundreds of other chemicals and compounds are among these items.

These two main breath testing machines used in Missouri DUI / DWI cases assume that everything that absorbs infrared light at these three wavelengths is alcohol.

The interferant detector on these machines is allegedly designed to eliminate these problems, but I wouldn't recommend this interferant detector letting you rest easy if you happen to be a painter for a living, and you are asked to take a breath test in Missouri.

The interferant detector is designed to check the ratios at which infrared light is absorbed for any item present in the breath sample, at each of the three wavelengths being tested, and it allegedly compares that to the ratio at which alcohol absorbs infrared light at the same three wavelengths.

Chemical interferants are possible contaminants to your breath test in some situations. If your occupation exposes you to chemicals that may potentially have affected your breath test, you need to tell the lawyer handling your case. Certain types of paints, adhesives, solvents or cleaning products may affect a subsequent breath alcohol test.

If these machines did work properly, (untested by the Missouri Department of Health to my knowledge), it is designed to either: print the “INVALID SAMPLE” error code on the card (if it cannot correctly subtract out the effect of the interferant detected); or automatically “subtract out” the effect of the interferant detected.

The police are trained to give the driver a blood or urine test in this situation, but if the machine is such a piece of junk that it cannot tell the difference between ethanol (alcohol you have drunk) and paint fumes, what difference does it make?

MARGIN OF ERROR

One of the biggest weaknesses of the breath testing machines utilized in Missouri DUI / DWI cases involves the allowed margin of error for testing results. If you blow a 0.08% BAC, believe me, they WILL try to convict you despite being right on the edge of the legal limit, but when it is time for testing and maintaining the Missouri breath test machine, they are allowed a 0.05% variance!

This means that when the machine is tested, they run a known solution through it, usually a "0.10" solution. If the machine comes back as low as 0.05, or as high as 0.15, it is close enough for testing purposes-- good enough for government work.

Every numeric measurement of the machine other than the driver's breath has an "allowed" margin of error.

For instance, when the breath testing machines are “tested” for accuracy (only every 35 days!) the State of Missouri utilizes a simulator solution that is known to produce a result of 0.08%. This simulates a driver's breath, and if the machine says it is 0.08%, you might argue that it is fair to say that it is working properly, since the machine could measure a solution, known to be 0.08%, at 0.08%. Only, the breath testing machine does not have to say the testing solution is actually 0.08%, only close to it,and it is still deemed to be working!

In other words, the breath testing operator when “testing” the machine for accuracy is allowed a 23% variance in the actual result.

The temperature in the simulator solution that is supposed to read 34 degrees centigrade is also permitted to be slightly “off," of course affecting the validity of the result. The thermometers used to measure the heat of the sample solution the breath testing machines are tested with aren't even calibrated in Missouri !

Each of these allowed margins of error are explained in the Manufacturer's Operating Manual for the breath testing machines.

PARTITION RATIO

Another misconception regarding the breath testing devices utilized in Missouri DUI / DWI cases, such as the Intoxilyzer 5000 and the BAC Datamaster, is that they measure blood alcohol level (BAC).

Breath testing machines used in Missouri DUI / DWI cases, such as the Intoxilyzer 5000 and the BAC Datamaster do not attempt to measure a person's “breath alcohol content,” but they instead attempt to approximate “blood alcohol level” by taking the breath result as it goes through the machine and multiplying the result times 2100 to 1.

These breath testing machines do not actually measure blood alcohol level—they estimate it.

You see, for breath testing machines such as the Intoxilyzer 5000 or the BAC Datamaster to measure your ACTUAL blood alcohol content (BAC), you would have to blow 2100 liters of air into the breath machine. Think about that for a minute. That is 700 three-liter coke bottles full of air, or one 55-gallon drum.

Because no one can actually produce this much actual air to get an actual blood alcohol measurement, the breath machine takes your actual breath sample (and this breath sample and any reading of alcohol in it is minute), and then plugs it into the preset equation (i.e.-- it "guesses") utilizing what is called partition ratio.

This is a multiplication conversion based on the ratio of 2100/1 blood to breath, because the “average person” would take 2100 liters or 55 gallons of actual air to give a real BAC measurement. Never mind the fact that 2100 liters is just the number to be used for “the average person.”

In other words, if you took 10 people, person number 5 would actually have a partition ratio of 2100/1, but the four on the left would have a partition ratio of LESS than 2100/1, and the four on the right would have a partition ratio of GREATER than 2100/1.

Actual blood to breath ratios vary greatly from person to person, and from time to time with the same person. Factors which can influence variances in a person's actual partition ratio include:

time of the consumption: If alcohol was recently consumed, the breath alcohol level will be higher than 2100 to 1 breath to blood alcohol level ratio. Also the activity of the driver will affect the blood to breath ratio, and the rate of elimination of the alcohol from the driver's body. Alcohol is eliminated by: respiration and breathing, perspiration and sweating, and urination.

Physical activity increased both respiration and perspiration, and in doing so increases the rate at which the body eliminates alcohol. In other words, the physical activity of the driver on the night in question greatly affects and can often change the “blood to breath ratio” from in what might normally be in that person.

Higher breath temperature will cause a 7% higher breath test result as a result of changes in the 2100 to 1 partition ratio. See the discussion of breath temperature below.

Actual blood to breath ratio in individual people varies, based upon several studies, from a low of 1100 to 1 to a high of 3400 to 1.

2100 to 1 is just a statistical average of those studies, and a random, convenient number for the State to use, despite it not in any way actually correlating to reality.

If you are not the “average person,” watch out if you have taken a breath test in Missouri, because their antiquated machines will assume you are the average person, and will spit out a breath test result based upon that false assumption.