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Often the most damaging evidence in a DUI prosecution is the results of a breath test. In an attempt to convict someone of DUI, the State will present a Breathalyzer result of .08 or higher as evidence that an individuals blood alcohol concentration was over the legal limit. You will need to note, a Breathalyzer test is what is considered an "indirect test." The reason the Breathalyzer is an indirect test is because it purports to measure blood alcohol concentration by use of something besides blood. Obviously the Breathalyzer uses air from the lungs in order to determine blood alcohol concentration. In order for an indirect test to be accurate there has to be a correlation between the total amount of alcohol present in exhaled breath and blood contained in the circulatory system. Among the faulty assumptions with the Intoxilyzer 8000 is that the result given doesn't take into account numerous variables. Unfortunately, in a DUI case, once the State has laid the evidentiary foundation required to admit the test result, the DUI defense attorney's job is to clarify how the result was obtained. This is what is termed a "burden shift" and is otherwise unconstitutional in any other type of criminal case. It is said the burden of proof for the State for a DUI case is lower than any other kind of criminal case. DUI attorneys commonly call this the "DUI exception to the Constitution." The design of the Intoxilyzer 8000 is designed to avoid common occurrences from producing an inaccurate result. Among the many issues frequently raised is the issue of mouth alcohol impacting the result of the test. Essentially, mouth alcohol is alcohol that is not exhaled from the lungs, but rather alcohol in an individuals mouth. That seems simple enough. In an effort to eliminate a false high test result and make sure that the result is admissible in a DUI prosecution, the officer administering the test is required to conduct a 20 minute observation in order to insure that the individual doesn't regurgitate and/ or vomit which may cause alcohol in the stomach to go to the mouth. In combination with requiring a 20 minute observation period, the Intoxilzyer 8000 has a "slope detector." The slope detector is intended to prevent mouth alcohol from giving an artificially high reading. The bottom line is that the slope detector doesn't work. Click on this link to observe the slope detector fail on the Intoxilyzer 8000. Slope Detector Fails on Intoxilyzer 8000. Video courtesy of Stephen Daniels and DUI Undo Consultants, LLC. Along with regurgitating, vomiting and belching, mouth alcohol often is influenced by dentures and other items in the mouth. Recently a portable breath test result was excluded in the case of State of Illinois vs. Mark Ditka because of the fact that he was chewing tobacco immediately before he was asked to take the portable breath test. Chewing tobacco or snuff contains a byproduct of alcohol called acetaldehyde. Due to the way that certain breath testing machines read the infrared spectra, the machines can easily confuse ethyl alcohol with acetaldehyde. The manufacturers of infrared breath testing equipment have gone to great lengths in an attempt to remedy false positives and/or artificially high readings. The machines might also render false positive results as a result of exposure to certain hydrocarbons. Regarding the older model Intoxilyzer 5000, there exists some debate as to if a person will register a result if exposed to a compound called toluene. The Intoxilyzer 5000 reads the infrared spectra produced at 2 points in order to eliminate false positives for other hydrocarbons. An article entitled "The Response of the Intoxilyzer 5000 to Five Potential Interfering Substances" is a peer reviewed and published article which indicates the Intoxilyzer 5000 will yield a positive result for alcohol based on exposure to toluene. The article was written by JP Caldwell and NP Kim of the Department of Chemistry, University of Waikato, Hamilton, New Zeland. A contrary position was taken in the article "Toluene and the Intoxilyzer 5000: No Response to Concentrations Found on Human Breath" written by PL Glover. Additional factors that been shown to effect the readings of infrared spectroscopy breath testing devices include acetone in the breath, asthma, altitude, blood contained in the mouth.......the list can go on for an extremely long time. However, it is rather clear that these machines will render false positives and artificially high readings in certain circumstances. Since the test result is a vital piece of evidence in any DUI proceeding, it is important to examine not only the piece of paper with the number, but the data and records from the individual machine in order to determine exactly how that number was reached. Michael Dye is a Florida DUI Attorney located in Fort Lauderdale, Broward County, Florida. For further information, please call (954)745-5848 or visit http://AlcoholAndDrugLaw.com.
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