Beating the Breath TestBeating the Breath TestIncrease your Knowledge and Increase your Knowledge and

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CSI Effect CSI Effect Jurors love scienceJurors love scienceThe defenses are based in science The defenses are based in science and common senseand common sense

EducationEducationWorking knowledge of alcohol and the Working knowledge of alcohol and the bodybodyUnderstanding of how the machine worksUnderstanding of how the machine worksIn many cases the prosecution wonIn many cases the prosecution won’’ttEducate the judges and jurors with expertsEducate the judges and jurors with experts

DefensesDefensesAll defenses to the breath test reading are All defenses to the breath test reading are based upon sciencebased upon scienceEither the science of the body Either the science of the body Or the science of the machineOr the science of the machine

HenryHenry’’s Laws LawIf a gas and a liquid are in a stoppered If a gas and a liquid are in a stoppered container at a constant temperature, a container at a constant temperature, a substance in the liquid will evaporate into the substance in the liquid will evaporate into the gas until the liquid and the gas reach equilibriumgas until the liquid and the gas reach equilibriumThe concentration of the substance is different in The concentration of the substance is different in the gas versus the liquidthe gas versus the liquidIf you know what the proportion is, then by If you know what the proportion is, then by measuring one you can determine the othermeasuring one you can determine the other

Law of Absorbtion – Beer-Lambert Law The BEER-LAMBERT LAW states: For a defined path length (the sample chamber), containing an absorbing system (concentration of ethanol molecules), the transmitted energy (IR energy) will proportionally decrease with the increase in concentration of the absorbing system.

The Breath MachineThe Breath Machine

Disconnect CasesDisconnect CasesThe test has to be wrong because it does The test has to be wrong because it does not match the physical evidencenot match the physical evidenceSuccess is bred by facts that suggest errorSuccess is bred by facts that suggest errorMinimal operation problemsMinimal operation problemsA passed FSTA passed FSTA good videoA good video

Potential DefensesPotential Defenses

Body temperatureBody temperatureExhale PressureExhale PressureRetrograde ExtrapolationRetrograde ExtrapolationNon SpecificityNon SpecificityMouth AlcoholMouth AlcoholGERDGERDPartition RatioPartition RatioLinearityLinearity

Body TemperatureBody TemperatureConstant temperatureConstant temperatureDeep lung air is 37Deep lung air is 37°°C or 98.6C or 98.6°°FFIt cools to 34It cools to 34°°C as is exits the bodyC as is exits the bodyThe machine heats to 34The machine heats to 34°° C in an attempt C in an attempt to maintain a constant temperatureto maintain a constant temperatureVariations cause problemsVariations cause problemsAlabama requires a temperature Alabama requires a temperature adjustmentadjustment

Body TemperatureBody TemperatureWarmer air holds more moistureWarmer air holds more moistureAlcohol goes to the waterAlcohol goes to the waterHold your breath (20 seconds) Hold your breath (20 seconds) –– warmer warmer ––more alcohol in the sample more alcohol in the sample -- 16% higher16% higher(Dr. Michael P. Hlastala, Ph.D.)(Dr. Michael P. Hlastala, Ph.D.)Hyperventilate (20 seconds) Hyperventilate (20 seconds) –– colder colder ––less alcohol in the sample less alcohol in the sample -- 11% lower11% lower(Dr. Michael P. Hlastala, Ph.D.)(Dr. Michael P. Hlastala, Ph.D.)

Exhale PressureExhale PressureHow you blow makes a differenceHow you blow makes a differenceDr. Michael P. Hlastala, Ph.D.Dr. Michael P. Hlastala, Ph.D.The greater the pressure of the expelled The greater the pressure of the expelled air the higher the readingair the higher the readingYou are blowing air into a chamber that You are blowing air into a chamber that has an exit tubehas an exit tube

Retrograde ExtrapolationRetrograde ExtrapolationYour client is pulled over at midnight Your client is pulled over at midnight and blows a .12 @ 1:15 AMand blows a .12 @ 1:15 AMIf you are defending in a time of If you are defending in a time of driving state how does the driving state how does the government prove that the client government prove that the client was .08 or above at midnightwas .08 or above at midnightOR how do you show that he was OR how do you show that he was under .08 at midnight under .08 at midnight

Retrograde Extrapolation Retrograde Extrapolation You cannot get an accurate You cannot get an accurate Retrograde Retrograde ExtrapolationExtrapolation # unless you have both # unless you have both dose amounts and times and eating dose amounts and times and eating history. history. Even with that information you can only Even with that information you can only get a range because absorption and get a range because absorption and elimination rates are different for everyoneelimination rates are different for everyone

Retrograde Extrapolation Retrograde Extrapolation If the government is attempting RE, If the government is attempting RE, quote Dr. quote Dr. DubowskiDubowski –– ““It is unusual It is unusual for enough reliable information to be for enough reliable information to be available in a given case to permit a available in a given case to permit a meaningful and fair value to be meaningful and fair value to be obtained by retrograde obtained by retrograde extrapolationextrapolation”” or A.W. Jones or A.W. Jones ““A A dubious practicedubious practice””

Retrograde Extrapolation FactorsRetrograde Extrapolation Factors

Time of consumption Time of consumption –– before, before, during or after drivingduring or after drivingRate of consumptionRate of consumptionType of drinkType of drinkTime from ingestion to absorption Time from ingestion to absorption ––14 to 138 minutes (10x faster) 14 to 138 minutes (10x faster) ––DubowskiDubowskiNeat whisky on an empty stomach Neat whisky on an empty stomach 23% took longer than 45 minutes 23% took longer than 45 minutes ––A.W. JonesA.W. Jones

Retrograde Extrapolation FactorsRetrograde Extrapolation FactorsWhat causes delay What causes delay –– drink mixers drink mixers ––foodfoodWhy? The stomach does not empty Why? The stomach does not empty through the pyloric valve until the through the pyloric valve until the contents are digestedcontents are digestedSo what? This process can flatten the So what? This process can flatten the alcohol curve because in effect you alcohol curve because in effect you are drinking over a longer period of are drinking over a longer period of timetime

Retrograde Extrapolation Retrograde Extrapolation Elimination Rates Elimination Rates –– vast majority of vast majority of

people eliminate at a rate of .01% people eliminate at a rate of .01% --.025% per hour.025% per hour

Retrograde Extrapolation Retrograde Extrapolation The government has to guess:The government has to guess:when they started drinkingwhen they started drinkingThe pace they were drinkingThe pace they were drinkingWhen they stopped drinkingWhen they stopped drinkingTheir absorption rateTheir absorption rateHow food or mixers effected the rateHow food or mixers effected the rateWhen they peakedWhen they peakedWhat the elimination rate wasWhat the elimination rate wasIf you have all of these then itIf you have all of these then it’’s possible to get a s possible to get a rangerange

Blood in MouthBlood in MouthBracesBracesBleeding gums Bleeding gums injuryinjury

Non Non -- SpecificitySpecificityBreath machines Breath machines including the including the IntoxilyzerIntoxilyzerand the and the DraegerDraeger Alcotest 7110 MK III are Alcotest 7110 MK III are nonnon--specific for alcoholspecific for alcoholDifferent machines have different filtersDifferent machines have different filtersOld 3.5 Old 3.5 µµm / New 9.5 m / New 9.5 µµm m

Non Non -- SpecificitySpecificityThe purpose of using 9.5 The purpose of using 9.5 µµm region of the m region of the spectrum is that the absorbance at that spectrum is that the absorbance at that level is of the carbon level is of the carbon –– oxygen bond due oxygen bond due to the carbonto the carbon-- oxygen/hydrogen stretching oxygen/hydrogen stretching motion of primary alcohols (ethanol is a motion of primary alcohols (ethanol is a primary alcohol). The theory being that primary alcohol). The theory being that many of the additional many of the additional ““absorbing absorbing compoundscompounds”” that plagued the Intoxilyzer that plagued the Intoxilyzer ®® and the Datamaster and the Datamaster ®® were not were not detected at the 9.5 detected at the 9.5 µµm wavelength.m wavelength.

Non Non -- SpecificitySpecificityAs it is the carbon As it is the carbon –– oxygen bond and not oxygen bond and not the compound itself being identified during the compound itself being identified during the breath test, substances other that the breath test, substances other that alcohol which contain a carbon alcohol which contain a carbon –– oxygen oxygen bond are identified as ethanol by the bond are identified as ethanol by the machine. This results in a false positive machine. This results in a false positive reading.reading.

Non Non -- SpecificitySpecificityDespite the promotion of the machine as Despite the promotion of the machine as immune to interferents at the 9.5 immune to interferents at the 9.5 µµm level, m level, testing by the State of Alabama Department of testing by the State of Alabama Department of Forensic Sciences revealed that two common Forensic Sciences revealed that two common interferents at the 3.4 interferents at the 3.4 –– 3.5 3.5 µµm range, m range, nn--butanol butanol and toluene, also print analytical results. The and toluene, also print analytical results. The nn--butanol printed analytical results at all butanol printed analytical results at all concentrations and the toluene printed results at concentrations and the toluene printed results at lower levels and lower levels and ””invalid test interferenceinvalid test interference”” at the at the higher level.higher level.

Alcohol MoleculesAlcohol Molecules

Alcohol MoleculesAlcohol Molecules

GERDGERDMixing of stomach gas with lung airMixing of stomach gas with lung airBasic example is burpingBasic example is burpingPurpose for the observation periodPurpose for the observation periodDifferent Partition ratio than air bloodDifferent Partition ratio than air blood

Partition ratioPartition ratioMachine tests the amount of alcohol in breath Machine tests the amount of alcohol in breath and converts that number to an estimate of what and converts that number to an estimate of what the BAC should bethe BAC should beCompletely based on the Completely based on the AssumptionAssumption that there that there is proportion is 2100:1is proportion is 2100:1The proportion can be as low as 1700:1 and as The proportion can be as low as 1700:1 and as high as 3200:1high as 3200:1Average height of a male is 5Average height of a male is 5’’ 1111”” How many How many men are men are 55’’ 1111”” ??The lower the ratio the more falsely high the The lower the ratio the more falsely high the reading isreading is

Non Non –– Specificity Specificity and and Partition ratioPartition ratio

EthyleneEthylene 14:114:1Nitrous OxideNitrous Oxide .468:1.468:1TolueneToluene 5.5:15.5:1Diethyl EtherDiethyl Ether 15.2:115.2:1AcetonitrileAcetonitrile 578:1578:1IsopropanolIsopropanol 1671:11671:1AcetoneAcetone 75:175:1

LinearityLinearityPurpose of the simulatorPurpose of the simulatorAssume it only tests at .15%Assume it only tests at .15%At the time of the test we only know how it is At the time of the test we only know how it is evaluating a .15 sample of air from the simulatorevaluating a .15 sample of air from the simulatorThe solution is actually a higher # that when The solution is actually a higher # that when heated to 34heated to 34°° C produces .15 in the air above itC produces .15 in the air above itNo idea if the machine is working properly to No idea if the machine is working properly to evaluateevaluate

The diagrams used in this The diagrams used in this presentation are the presentation are the ©© of Phillip B. of Phillip B. Price, Price Law Firm, Huntsville ALPrice, Price Law Firm, Huntsville AL