Breath and Sobriety Tests - Kansas DUI & Missouri DWI Journal

The following information is posted by Kansas DUI lawyer Jay Norton. Please return to this page periodically for new information regarding DUI & DWI laws in Kansas and Missouri.  This page displays all of Mr. Norton's submissions concerning breath tests and other sobriety tests.

Thursday, August 21, 2009
"The Kilogram" - Doing Some Math

I heard an interesting story on NPR this morning while driving to the office from court that demonstrates why there should always be reasonable doubt about breath test results from the Intoxilyzer 8000, which is used in all Kansas DUI breath tests, and many in Missouri: Over one hundred years ago scientist forged a kilogram in London, meticulously weighed it, and sent it to Paris where it was placed in a box and stored. It is the standard against which all other weights in the world are measured. It has only been taken out and looked at by scientists 3 times in the last one hundred years. Unfortunately, “The Kilogram”, as it is known, has lost some weight inexplicably and it is a big problem for science. It has only lost about 50 billionths of a kilogram, but for science, which is concerned with precise measurements, that is a big problem. So, there is an effort underway to replace “The Kilogram” so that measurements can be precise.

The Intoxilyer 8000 is supposed to measure the grams of alcohol per 210 liters of breath. 210 liters is roughly the size of a 55 gallon drum barrell. Of course, no one could ever blow 210 liters of breath into a machine. The sample chamber of the Intoxilyzer 8000 is only 1 cc. The machine has to multiply 1 cc enough to make it as large as a 55 gallon drum, or 105 2-liter bottles. If you do the math, it has to multiply 1 cc a total of 210,000 times to equal 210 liters. The amount of alcohol in a 1cc chamber would be .00000038565, or less than 4/ ten-millionths of a gram! That means any error, to even the slightest degree, in the measurement of 1 cc will cause the machine to multiply that error times 210,000.

As we know, the breath test result can be wrong if the measurement is not precise, down to the thousandth of a gram. Alcohol is more concentrated in the blood than in the breath. Therefore, some conversion factor is needed to convert breath concentrations to blood concentrations. In breath testing that conversion factor is known as the “partition ratio.” The partition ratio generally used is that of 2100:1 – i.e. the amount of alcohol contained in 2100 milliliters of breath is the same amount of alcohol that is found in 1 milliliter of blood. This partition ratio of 2100:1 is based upon several assumptions. The primary assumptions that affect breath testing are:

1. That the person being tested is in the elimination phase and is no longer absorbing alcohol into the bloodstream;

2. That the test subject’s expired breath has a temperature of 34° C or 93.2° F and that this temperature corresponds to the same core temperature in all individuals;

3. That the test subject’s blood particulate (hematocrit) levels are “normal;”

4. That all of the alcohol that passes into the test chamber comes from the deep lung air of the test subject; and

5. The only substance that is absorbing light in the test chamber is ethanol.

Inaccuracies in these assumptions create inaccuracies in the estimation of blood alcohol from breath alcohol by the Intoxilyzer 8000.

Variations from these assumptions create variations in the partition ratio. Measured variations in the post-absorptive partition ratio encompassing two standard deviations of 95% of the population run from a low of 1797:1 to a high of 2763:1. When that range is extended to cover 99.7% of the population or three standard deviations, the range is 1555:1 to 3005:1. Individuals with a partition ratio of 1797:1 who are tested at .080% and .090% on an Intoxilyzer 5000 have actual blood-alcohol concentrations of .068 % and 077%, respectively. Individuals with a partition ratio of 1555:1 who are tested at .080%, .090% and .100% on an Intoxilyzer 5000 have actual blood-alcohol concentrations of .059%, .067% and .074, respectively. Moreover, as noted above, these ranges are for post-absorptive individuals, i.e. individuals in the elimination phase. Variations in the absorptive phase are even greater.

So, the Intoxilyzer 8000 makes a host of assumptions about the person blowing into the machine, including his or her partition ratio, breath and body temperature, and hematocrit level. Any deviation from these assumptions and the error is magnified thousands of times by the machine.

Real scientists are deeply concerned about the 50 billionths of a kilogram which "The Kilogram" has lost. All other weight measurements in the world hinge on this. Accurate science requires accurate measurements. Kansas DUI cases, and driving privileges, hinge on the Intoxilyzer 8000 being accurate. Yet, the "science" of Kansas DUI does not require accurate measurement. Good science would also require two breath tests, even Santa Claus checks his list twice. But we don't do a confirmation breath test in Kansas. That is bad science. Anyone that says “close is good enough for government work” is not a scientist, but merely a spokesmodel for Intoxilyzer and the prosecution.

The story is interesting and you can find it here: http://www.npr.org/templates/story/story.php?storyId=112003322

Wednesday, November 5, 2008
Field Drug Tests Don't Work

A story in USA Today tells of the many people who are being arrested, handcuffed and taken to jail because innocent items in their possession test positive for narcotics in a field test. One couple in the story was arrested at an airport and had their baby taken away from them because the chocolate in their luggage came up positive for hashish. Another man in the story sat in jail for 2 months because his deodorant came up positive for cocaine. This is crazy.

What happens in your typical drug case is that when suspected drugs are found, the person in possession of them is immediately charged with a crime. The contraband is sent off to the crime lab where it is tested to confirm that the confiscated material is actually the illegal drug it appears to be. These lab tests, in Kansas drug possession cases, usually take 6 to 8 weeks, sometimes longer. While the confirmation test at the lab is pending, the person from whom the suspected drugs were taken is in jail, or out on bond dealing with the criminal charge against him or her. A lawyer must be obtained by the person and there will usually be a court appearance or two before the lab results come back.

Most people know what a bag of marijuana looks like (a green, leafy substance), and what cocaine looks like (white powder), and what most other drugs look like (pills, rocks, etc.). Usually, there is some paraphernalia involved (pipes, lighters, steel wool, rolling papers) when drugs are found. Why would anyone get arrested for possession of chocolate? It doesn't look or smell like hashish. Why would anyone get arrested for deodorant? It does not look like cocaine in any way, shape or form. Other people in the story report being arrested for possession of soap that comes up positive for GHB, a date rape drug. One couple's soap-related arrests have cost them $20,000.00 in legal bills!

Common sense seems to have left the building in these cases. But, that is the problem with "tests". They are given the imprimatur of "science" when they are not actually good science. Once the test gives a "result", the blinders come on and chocolate becomes hashish, deoderant becomes cocaine. It is crazy, but obviously a real phenomenon. This problem is not limited to drug cases. In Kansas DUI and Missouri DWI cases, people are routinely taken to jail based on totally unscientific field tests, including preliminary breath tests (PBT) which are screening tests done out on the side of the road before a person is arrested. These PBT's are not specific for alcohol (in other words, other chemical compounds can be mistaken by the machine for alcohol), are often not calibrated or otherwise tested for accuracy, and are usually not operated according to the requirements of the product manufacturer. In fact, they are so unreliable, the Kansas legislature has made them inadmissible in Kansas DUI cases for most purposes. But, they are enough to get you arrested and taken to the jail.

The breath test that is admissible, the Intoxilizer 8000 in Kansas, raises similar problems. When a person blows into the machine and it spits out a number over the Kansas legal limit of .08, everyone assumes the person is guilty and the blinders come on. This presumption is hard to overcome. However, the Kansas breath test is more like someone's deodorant testing positive for cocaine than a laboratory test conducted according to scientific principles. The machine is fallible. Everyday products like white bread will give a false positive on the machine for acohol (and no one knows why). You should see what happens with mouthwash, chewing tobacco, asthma inhalers and other innocent products! Other innocent physiological issues like body temperature can cause a person who is not intoxicated to submit a test over the legal limit. Blood tests for alcohol are like the confirmation tests done at the lab on the drugs. They are much more scientific and accurate, if done properly. However, blood tests in Kansas DUI cases are infrequent.

Of course, it costs money to get a blood test and it takes the same 6 to 8 weeks for the results in most Kansas cases. But, if we are going to put people in jail for significant periods of time, and take away driver's licenses (and therefore livelihoods) for long periods of time, as well as cause people to otherwise lose their freedom and live with the stigma of a DUI, shouldn't we be basing those decisions on the most reliable and most accurate tests available? Is the cheapiest and easiest test, yet least reliable test, the right way to go? At least Kansas ought to join the overwhelming majority of the states which require 2 breath tests. By doing 2 breath tests a few minutes apart, there is at least a better chance that the one test wasn't due to a malfunction of the machine, or some innocent product, or some other fluke. Even Santa Claus checks his list twice! The carpenter's motto is "measure twice, cut once." Getting two breath tests doesn't cost anything more. The powers that be just don't want to do it because it would expose the fallacy of the machine when it spits out two wildly different results taken only minutes apart. Duplicate testing is not just a good idea. It is a scientific requirement for accuracy and precision. Otherwise, these cheap and easy tests turn deodorant into cocaine and sober people into criminals.

Saturday, October 25, 2008
More Fudging of Breath Test Accuracy

Just so that no one accuses me of exaggeration when I alleged in a recent post that, unfortunately, there is frequent cheating, fudging and falsification when it comes to the quality control and accuracy calibration of breath testing devices, here is another example of it. This story comes from Houston, Texas where the person in charge of inspecting and assuring the accuracy of the Intoxilyzer breath test machine has been found to have been faking her reports. Thousands of DUI cases have been thrown into question. Many people have already been found guilty and gone to jail based on these false results. Lives, families and careers have almost certainly been derailed because of DUI convictions and driver's license suspensions that were based, at least in part, on breath test results from these untrustworthy machines.

It is not just me offended by this sort of fraud. From the story:

The news was troubling for the police departments whose work might be undone."It's sickening," said Clute Police Chief Mark Wicker. "It's very disturbing."

Troy McKinney, a Houston lawyer who specializes in DWI appeals, said this is especially tragic given that there are already questions about the science of these tests and a DWI conviction can be career changing for people.

As I said before in the posts here and here, this is not an indictment of all law enforcement or all breath tests, but it does reinforce what I also last posted here, that Kansas DUI lawyers most never take for granted that the science is up to snuff. It always must be looked into because this does happen far too often.

Sunday, October 19, 2008
Fudging Breathalyzer Accuracy

This story from Miami is just another example of how a dishonest law enforcement officer can cover for the inaccuracies of the breath test machine causing breath test results to be questionable in thousands of cases. I hesitate to post these kinds of stories, although frankly there is at least one every month or two. I do not want to appear to be anti-law enforcement. The majority of police officers are dedicated, hard-working people doing a tough job and doing it with integrity. However, given that my last post concerned cheating on the breath test, I thought I would highlight this story to demonstrate that these sorts of issues are not as rare as they should be.

In Miami, FL, the person in charge of the Intoxilyzer 8000 (the same machine used in Kansas DUI cases) for the Miami-Dade Police Department was required to run certain tests on the machine on a regular basis to check and demonstrate that the machine was operating properly. Just about every state has such a quality control program. The Intoxilyzer 8000 has a modem on it and every test run on the machine in Florida is dowloaded to a central repository where its results can be monitored for accuracy and compliance with the quality control program.

The officer in the story was running the quality control tests on the machine, but whenever the machine would start to malfunction, she would just unplug the machine so that the test was aborted, erased and never reported via the download as required. Thus the state authorities could never see that the machine was malfunctioning and the police department could keep on giving breath tests to hapless, unknowing drivers. No doubt, over the 18 month period that this was happening, thousands of people were convicted of a serious crime, put in jail and had their licenses revoked, all based on a machine that was not working properly and was not in compliance with the quality control program for the state. The officer was fired but it remains to be seen what will happen with all of those cases.

As I have said before, I have seen this sort of thing in Kansas DUI cases, as well. It can happen anywhere. Again, most officers are honest and play by the rules, but it only takes one to start fudging breathalyzer results and call into question thousands of breath tests. This is one of the reasons that hiring the best Kansas DUI attorney you can find is so important. A DUI defense attorney needs to be aggressive in hunting down the documents concerning the machine that your breath was tested on, getting all of the maintenance logs, testing logs and calibration logs, and any and all repair records.

I recently discovered that when the Kansas Department of Health and Environment changed the regulations for breath testing in Kansas on March 14, 2008, they failed to re-certify their Intoxilyzer machines. They failed to require that any of the police departments follow the new rules that they issued! When I raised it in a trial, their response was to just print up new certificates with the new regulation numbers and mail them out to each agency, despite the fact that no one had followed the regulations. I raised it in a trial on September 11, 2008. On September 12, 2008 the KDHE issued the new certificates and BACKDATED them to March 14, 2008, in an effort to conceal this massive problem. What? Anyway, there will likely be more on this issue later. Suffice it to say, these breath tests are supposed to be scientific and accurate. Someone has to apply strict scrutiny to these breath testing programs to watch out for this type of fudging.

Friday, October 26, 2007
Technology Wars

A 17 year old boy in California got a ticket for going 62 miles per hour in a 45 miles per hour zone. The officer clocked him with a radar gun. End of story, right? Well, it turns out that the boy's father is a retired law enforcement officer himself and he had installed a GPS tracking device that measured the boy's speed every 30 seconds and emailed dad if the boy was speeding. The retired sheriff's deputy downloaded the log from the GPS device for the time and location at which the boy was alleged to have been going 17 miles over the speed limit and lo and behold it looks like the radar gun was wrong! This article discusses this case and the fact that all over the world people are challenging radar gun readings and speeding tickets based on the GPS devices in their cars that say otherwise.

Of course, the police are sticking to their guns (pun intended) and saying that the hand-held doppler radar gun the officer was using is more accurate than the fixed satellite parked in geosynchronous orbit. I think that is highly doubtful, but the question it raises is that one of these technologies is way wrong. I see this happen in Kansas DUI cases, too. A person will blow one number on a PBT and then blow into an Intoxilyzer 30 minutes later and blow a totally different number - one not explainable by the mere passage of time. One of these technologies is clearly wrong in that situation.

This speeding ticket challenge will be an interesting case to watch. The courts of Kansas, and probably every other state, have declared that radar gun technology is reliable. Almost no one challenges a speeding ticket because a person's word against the police machine is not usually enough to cast doubt on the radar result. Technology, though, is putting power into the people's hands and I expect we will see a lot more of these technology wars in the future.

Saturday, July 21, 2007
Top 10 Ways to Beat Field Sobriety Tests

Also known as "Roadside Gymnastics" or "Stupid Human Tricks", the so-called "Field Sobriety Tests" don't really measure whether a person is under the influence of alcohol or not. In addition to some exercises which have absolutely no relation to a person's ability to drive a car, like saying the alphabet, counting backwards, or doing a finger dexterity test, police officers will give a 9 Step Walk and Turn test and a One Leg Stand test. Law enforcement officers rely on these balance tests in making their decision about whether to arrest someone or not, but I don't find that judges or jurors place too much weight on them once some common sense is applied. These exercses are designed for failure and designed to make people off balance. So, it is not surprising when regular people have difficulties with them. No one is required to be able to stand on one leg for 30 seconds without swaying in order to get a driver's license. Here are some of the best ways to challenge the two physical "FST's", in no particular order:

1. Tests not Given or Scored According to NHTSA: The National Highway Transportation Safety Administration, commonly referred to as NHTSA, is the agency that developed the FST's. However, NHTSA says clearly in its manual that the "tests" are only valid if given and scored strictly according as prescribed by NHTSA. Usually, they aren't. Thus, using the NHTSA Manual an attorney can show that the tests are invalid as given by the officer.

2. Tests not Given or Scored According to Standard Operating Procedures of the Agency: Almost every individual police department has its own internal Standard Operating Procedures (SOP). Sometimes they are called General Orders or something else that sounds official. These are the rules laid down by the agency for the officers to follow. Often, these include orders and procedures for administering and scoring FST's. Thus, it is important to obtain a copy of the SOP. If the tests aren't given according to the SOP and the officer's training they may be thrown out or seriously discredited.

3. Failure to Inquire About Injuries or Illnessess: Obviously, a person with a bad back, bad knees, bad ankles, inner ear disorders or even allergies may have difficulty with tests of balancing or coordination. Even NHTSA says so. Yet, often, officers won't even ask whether a person has any such infirmities before they administer the exercises. Even if the officer asks, or the individual tells the officer that he or she has an issue that will make the tests difficult, they will give the tests anyway.

4. Surface Not Level: Whatever can be said about the efficacy of the FST's, common sense dictates that balancing tests are worthless if given on an improper surface. NHTSA says the tests must be given on a "dry, level, non-slippery surface". However, usually the roads are given on the side of a road. Roads are usually "crowned" which means they are higher in the middle and slope down on the shoulders. They are not often level. I have seen tests that were given on gravel, in the snow, in the middle of rainstorms, in barefeet on rocky surfaces, etc. The place where tests are given can be an issue.

5. Weather Conditions: As with the quality of the surface, the weather conditions are also a factor to be considered. The tests are almost always given outside (although the officers could give them inside back at the station). If it is windy, raining, snowing, or extremely cold the person's performance can and will be effected. Usually, you can get a good idea of the weather conditions from looking at the video. However, this issue can also require some research and getting certified weather reports to prove what the conditions were during the exercises.

6. Age and Weight: NHTSA states that the tests may not be valid for people who are over the age of 60 or more than 50 pounds overweight. If either of these conditions apply, they should be raised.

7. Failure to Demonstrate the Tests: The officers are trained to explain the instructions for the test and to demonstrate its performance. Sometimes they do not demonstrate the test, or demonstrate it incorrectly. Almost always, when demonstrating the 9 step walk and turn, the officer will demonstrate 3 or 4 steps and not all 9. The number of steps demonstrated can be important since it effects which foot you pivot on and which way you turn.

8. Failure to Videotape FST's: Most agencies have SOP's or General Orders that require that vehicle stops and field sobriety exercises be videotaped. If the officer fails to video the FST's, or the tape is lost or destroyed after an attorney has requested it, a motion to suppress the FST's can be filed. I have done so successfully now several times. The officer's failure to follow the internal procedures and orders of the agency may be enough to demonstrate bad faith and get anything that would have been on the tape thrown out.

9. FST's are Designed for Failure: The FST's can be discredited by using simple common sense. The exercises are designed for the specific purpose of making a human being off balance. We know it is easier to stand on two legs than it is to stand on one. It is easier to stand on one leg with your arms out parallel to the ground to help you balance than pinned to your side as the officer will instruct. So, it is no surprise that people sway when standing on one leg, or that they will have to put a foot down. The exercise is designed to make that happen. We know people walk with their feet shoulder width apart in an open gait as opposed to touching heel to toe on each step like the 9 ste walk and turn test requires. Each element of both physical FST's is designed to make a person unsteady and off balance. Once this is pointed out, I find people less likely to place much weight on the results of the FST's assuming that the subject didn't fall down or do something ridiculous during the exercise.

10. Shoes: The type of footwear or lack thereof can effect a person's performance on the FST's. NHTSA mandates that person's wearing shoes with a 2 inch heel should be given the opportunity to take his or her shoes off. Sometimes officers fail to provide this opportunity. If a person does take his or her shoes off, then they are doing the tests barefooted. Almost all roadsides have rocks, glass and other debris scattered across them. Walking on these surfaces in barefeet can be difficult. Also, when barefooted, people are less likely to touch heel to toe on the Walk and Turn. If the test are taken in sandals, flip-flops, dress shoes, cowboy boots, work boots, high-heels or other footwear that might make the exercises difficult, that can explain balance issues during the exercises.

Thursday, July 19, 2007
Top 10 Ways to Beat a Breath Test in Kansas

There are a whole lot of ways to get a breath test thrown out or to demonstrate that there is reasonable doubt about an alleged breath test result. Here are the Top 10, actually make it 12, not necessarily in any order of importance:

1. Observation Period: The required "Protocol" for Kansas breath tests mandates that the officer "keep the subject in (his) immediate presence and deprive the subject of alcohol for 20 minutes preceding the breath test". This is sometimes called the "observation period". The officer must generally keep an eye on the person to be tested for 20 minutes prior to the breath test to make sure he or she does not eat, drink, burp, belch, regurgitate, smoke, chew gum, etc.

2. Calibration Out of Tolerance: Each time a test is run on an Intoxilyzer machine in Kansas the machine must draw air in from a jar of solution next to the machine and test it. The air in the jar is supposed to test at a .080 to demonstrate that the machine is calibrated properly. However, Kansas allows a tolerance range of between .070 to .089 as acceptable. If the result falls outside of this range, the test is not reliable or admissible.

3. Failure to Properly give Implied Consent Advisories: Prior to every breath test, the person to be tested must be given oral and written notice of the Implied Consent Advisories. This is a list of information concerning the ramifications of refusing or failing a breath test. If the officer fails to give oral AND written notice, or if he doesn't read them in substantial compliance with the written version, the breath test is not admissible.

4. Advice Outside of the Implied Consent Advisories: If the officer gives information above and beyond what is contained in the Implied Consent Advisories, and especially if the information is false or misleading as to the ramifications of refusing or failing a breath test, the breath test may be thrown out.

5. Denial of Independent Test: Kansas law provides that after a person has submitted to the test of the officer's choice (breath, blood or urine) he or she has the right to obtain an independent test, which generally means a blood test from a doctor or hospital of the person's choosing. If the officer fails to allow the indpendent test, or somehow impedes the person from getting one, the breath test is not admissible.

6. Failure to Prove the Certification of the Machine or Operator: Both the breath test machine and the officer must be certified to perform breath tests by the Kansas Department of Health and Environment. If either one is not so certified, or the prosecution fails to prove the certifications at trial (by having the actual documents in court), the test is not admissible.

7. Failure to Test the Calibration Solution Weekly: The Kansas Department of Health and Environment requires that the soution used to check the calibration of the machine be tested two times each week to determine whether the machine is functioning properly. Sometimes the law enforcement agency fails to conduct the tests, or allows more than a calendar week to pass between the tests. If so, the test should not be admissible. The only way to know if the agency is conducting these tests is to obtain copies of the machine logbooks and a document called a "Monthly Certified Standard Report".

8. Failure to Change the Solution: The Kansas Department of Health and Environment also requires that the solution used to check the machine's calibration be changed every 10 days or 14 tests. If the agency fails to change the solution on these bases, the test should not be admissible. Again, you have to pull the records for the machine.

9. Failure to Report the Weekly Tests to the KDHE: In addition to changing the solution and running weekly tests on the machine using the external standard solution, the results of the weekly tests must be reported to the Kansas Department of Health and Environment every month on a form known as a "Monthly Certified Standard Report". Failure to comply with that requirement will may result in the test results during that period being inadmissible and/or the machine losing its certification.

10. Foreign Object in the Mouth: Officers should look inside a test subject's mouth prior to the breath test to make sure there are no foreign objects inside of it that could interfere with a breath test. The idea that a penny in the mouth will throw off the machine is an urban legend, but foreign objects like tobacco, retainers, false teeth, peircings or anything else unnatural in the mouth may make a breath test inadmissible or render it unreliable, especially if it is the type of object that can trap or retain alcohol.

11. GERD: Gastroesophageal Reflux Disease, also known as Acid Reflux, can cause a false high test on the machine. Basically, a person that suffers from GERD regularly regurgitates stomach contents into his or her esophagus and/or oral cavity. If this happens in the 20 minutes prior to the breath test it can cause an unreliable result in which a judge or jury may have reasonable doubt. Persons that suffer from this common condition should make sure that their lawyer is aware of this defense.

12. RFI: Radio Frequency Interference is radio waves coming from devices like police radios, cell phones, garage openers, etc. These radio signals can cause false high results on the Intoxilyzer. The Intoxilyzer uses RFI technology from the 1980's. This was a time before cell phones. There has been almost no clinical testing of the RFI detector on these machines given not only the ubiquity of cell phones now, but also the fact that devices that can cause RFI now operate at a much high level than back in the day. For instance, your home cordless phone probably operates at between 3 and 5 gigahertz. The Intoxilyzer RFI detector is no use at these levels.

There are literally hundreds of ways to defeat or cast doubt on a breath test. The foregoing examples are only a few of the possible ways. However, knocking a breath test out takes a lot of skill and knowledge, not only of the science behind infrared breath testing, but the rules of evidence specific to DUI cases, and the extensive body of caselawconcerning these forensic tests. This is no task for rookies or dilletantes. If you have a case involving a breath, blood or urine test you need the best, most experienced Kansas DUI lawyer you can find.

Monday, May 15, 2006
Inside the box..

A few months ago I mentioned here that Kansas would soon be adopting a new breath test machine to replace the Intoxilyzer 5000, which is about 20 years old. As I suspected, the machine they have chosen is the Intoxilyzer 8000. It was just officially announced a day or two ago. As I also wrote in April, I recently went to a national seminar to get some training on the Intoxilyzer 8000. It is basically the same gizmo as the 5000, just in a prettier box. Interestingly, the Intoxilyzer 8000 was rejected by the states of Tennessee and Alabama as not being reliable enough to meet their requirements. Yet, apparently it is good enough for Kansas. So, soon we will see all new protocols, regulations, statutes and training rolled out by the Kansas Department of Health and Environment. Our law firm is already up to speed on this machine. It won't change much in the way that DUI cases get handled, but things will be interesting for the next couple of years as these machines get implemented and challenged.

Tuesday, April 04, 2006
So-Called Scientific Evidence

I just returned from the "Mastering Scientific Evidence" seminar in Dallas, Texas which was sponsored by the National College for DUI Defense. For 3 days I learned more about breath and blood tests than I already knew. Before the seminar I thought I had a pretty good handle on the issues, but now I feel much more in command of the principles of chemical testing and the fallacies behind the breath tests.

I had been to training seminars before where I watched as people who had no alcohol, whatsoever, in their systems blew significant results on the Intoxilyzer 5000 simply because they had white bread in their mouths, had recently rinsed with mouthwash or because there was a cell phone in the room. So, I knew that the machine did not work as advertised. However, we really picked the thing apart in Dallas, and I am even more convinced that people are pleading guilty and taking diversion in cases where they had not actually broken the law. That, of course, is a miscarriage of justice.

The Intoxilyzer 5000 was introduced in the early 1980's. It relies on a z-80 microprocessor chip. The best known product to use the z-80 is the old Radio Shack TRS-80, one of the first personal computers in the early 1980's. If you were around in 1976 whenthe z-80 was released, and in the subsequent years in which it was employed in the TRS-80 (also known as the "Trash-80), you know we are dealing with ancient technology.

The technology in the Intoxilyzer 5000 was all created and "tested" before the advent of such things as cell phones. Cell phones create radio frequency interference (RFI) which can cause phantom breath test results on the breath testing gizmo. Cell phones transmit constantly, even when they are not in use. If the phone is turned on, the phone is transmitting. The worse the cell phone reception, like in police stations and jails, the stronger the signal the phone transmits as it attempts to connect to the signal. Digital cell phones are far more powerful than analog cell phones, so this problem is getting worse not better.

The "new and improved" Intoxilyzer 8000 is no better than the 5000. I got to see and use one for the first time in Dallas, and it essentially has all the same problems of the old machine. The cell phone still created a false positive on the machine. So did the white bread. The scary thing about the white bread causing positive breath tests is that no one knows why it does so. Thus, no one knows what else in someone's mouth, breath or system may also be causing false positives.

Another area in breath testing getting more attention is the role that temperature plays in testing. The concentration of alcohol in a vapor (like breath) is dependent on temperature. The higher the temperature, the higher the concentration of alcohol. The machine is set to assume that everybody's breath temperature is 34 degrees Celcius, and is calibrated at that level. Problem is, 34 C is not even the average breath temperature. A more medically and scientifically supported breath temperature is 35 degrees Celsius. Some people will be higher, and some lower. Every 1 degree Celsius of elevation of body temperature will mean about a 6.7% increase in the breath test result. That error is built into this machine! God forbid anyone should have a fever or an elevated body temperature due to fear and nervousness. Also, when a police officer tells someone to take a deep breath and "hold it" before blowing into the machine, the breath temperature is heated up which causes a higher breath test result (the body is 37 degrees Celsius).

This barely scratches the surface. I could go on all day and night about the unreliability of the Intoxilzer, but almost no one likes science. There is a better way to test breath, that other states have gone to. A company called Draeger makes a machine that 1. takes the temperature of the driver's breath and adjusts accordingly, 2. takes 2 different kind of measurements of the breath each time (fuel cell and infared), and 3. requires 2 tests of the person's breath so they can be compared for precision and accuracy. Of course, this machine costs a little more and requires a little more of the person operating the machine. My question is, though, isn't good science and good justice worth it?

Monday, December 19, 2005
New Machines

I haven't posted for a while. Things have been relatively quiet as far as Kansas DUI laws and news goes. Apparently, the Kansas Department of Health and Environment, with the help of law enforcement officers from around Kansas, has decided to phase out the Intoxilyzer 5000 as the approved machine and begin using a different machine. I don't know why that would be necessary since tens of thousands of Kansas have been convicted of DUI based on the results of this machine which the government has always told us was extremely accurate. Then why get the new and improved model? Anyway, the decision of which manufacturer and model to go with has been made but it is a secret right now. I don't know why it is a secret. I guess if things don't work out with the new manufacturer in terms of cutting a deal for a new batch of machines they can go to their second choice without anyone knowing it was the second choice. Whatever. The new machine should be rolled out by spring or summer 2006. Before that there will have to be a new protocol written for the machine, probably some amendments to the Kansas Administrative Regulations and maybe some legislation. It looks like the Intoxilyzer 5000 is no longer the superior technology it was touted to be and that machines all over the state will become boat anchors within the next year.

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