The National College for DUI Defense (NCDD) sponsors the most intensive and advanced DUI training seminars an attorney can attend. Not only do the Pennsylvania DUI attorneys at The McShane Firm regularly attend these seminars, I have been invited to present my research at the 2012 NCDD Winter Session to be held in Orlando from Jan. 19-20, 2012. My presentation is entitled “Why there is no Science in Evidentiary Breath Testing”.
DUI breath testing is completely unscientific. We are gambling with people's lives.
Briefly, DUI breath testing as it is used today was developed in the 1950′s and has remained largely unchanged since tat time regardless of the fact that science has completely evolved. DUI breath testing machines use an indirect method to produce a result and this method is not specific to ethanol. Many other substances, even some that are naturally produced in our bodies, can confuse the machine into producing erroneous readings even in people that are completely sober. On top of this, the software that these machines use have never been scientifically validated and there is an absence of oversight when it comes to making sure the machines are checked for its calibration properly. When all of this is taken into account, it is clear that thousands of people are being tested daily on inaccurate and unvalidated technology. DUI breath testing is a complete crap shoot.
Once again, it is a tremendous honor to be selected to speak at such a prestigious event which once again shows the recognition my work has received in the broader legal community.
We are gambling with peoples lives and undermining Justice with faulty forensics.
DUI testing scandals are nothing new nor are they even rare. From Central Pennsylvania to San Fransisco to Indiana to the Nation’s Capital, DUI testing scandals have effected tens of thousands of cases across the country. Lack of oversight, mishandling, cover-ups and under-qualified/over-worked technicians have become the norm rather than the exception. This time another DUI testing scandal hits Houston.
As I have argued before, there are two major problems created by the cloud of unreliability hanging over these tests: Innocent people are being falsely convicted and guilty people are not being brought to justice because the evidence is faulty. We are basically playing Forensic Russian Roulette with peoples lives and careers at stake.
We are gambling with peoples lives and undermining Justice with faulty forensics. The next victim could be you or someone you love.
Another week, another breath testing scandal. Whether it’s Philadelphia or our nation’s capital it seems like states and counties all over the country are reporting the same issue- faulty breath testing equipment leading to erroneous BrAC readings and false DUI arrests and even convictions. This week it’s Santa Clara’s turn.
The problem is not limited to these cities, it is a widespread problem that stems from the incorrect implementation of DUI breath testing devices. These devices do not measure alcohol directly and thus can flag naturally occurring substances in the body as ethanol. For example if a diabetic has a very low sugar level, or someone in a hyperglycemic state whose body transforms the ketones to isopropanol and/or naturally produced acetone can be flagged as alcohol. In some cases, the use of everyday items like a hand sanitizers has lead to a DUI breath machine reporting a false reading. You can even get a DUI for eating a sandwich. On top of that there are obvious design faults like in the scandal in Santa Clara County.
The icing on the cake is that individual police departments are responsible for maintaining and calibrating their own breath testing equipment, without any meaningful government oversight typically. Imagine an office manager asking an employee to perform a tedious task as per a set schedule and create reports that no one will ever check. What are the chances of this task getting done correctly? This is exactly what is going on in police departments all across the country. Officers with very little training are asked to calibrate their own DUI breath testing equipment without any regulatory body to check and see if they are in compliance.
The really sad part about all of this is that innocent people have been arrested and convicted of DUI violations based on this faulty evidence. They have suffered prison time, lost pay, license suspensions and the humiliation of being a convicted criminal all because of faulty breath testing.
This has really gone on long enough. How many innocent people have to suffer before our politicians wake up and find a better solution?
Imagine being an asthma patient for a second.
Asthma Patients Can Be Falsely Charged with a DUI
You are driving along at night while you are really tired. You may swerve a bit and your reaction time is slow. Suddenly you see blue and red lights flashing in your rear-view mirror. You get nervous and start breathing fast. Since you are an asthma patient you reach for your inhaler and take a couple puffs as per your normal habit. The cop asks you to step out of the vehicle and take a portable breath test (PBT) and you oblige because you know you had nothing to drink.
To your utter surprise, you register a BAC over .08 and the cop arrest you for DUI.
How?
Many popular inhalers for asthmatics have alcohol bases and the residual spray in your mouth and your lungs cause the highly inaccurate PBT device to record a high BAC level.
You may think that this is rare, but in my time as a PA DUI Attorney, I have seen numerous cases along these lines. There are many medicines and medical conditions that produce symptoms that may be misinterpreted as being DUI. This why anyone who faces medical conditions like diabetes and acid reflux as well as anyone taking medication should contact an experienced DUI attorney if they are charged with a DUI violation.
Why there should be cameras in DUI processing centers, blood draw areas and even labs….
It’s not just a Florida problem folks.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
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As a highly regarded DUI attorney, I invariably get asked “Well, how do I beat the breath test machine?” I always respond, “Don’t worry about beating the Breath test machine. Worry about it beating you.”
What I mean by this is that the machine can over-report your true Blood Alcohol Content. In other words, the alcohol in your veins can be less (sometimes very significantly less) than what the “magic” machine reports. These inaccuracies happen much more often than you might suspect.
First and foremost, the Breath Test doesn’t actually test how much you have to drink. As I previously wrote, these machines are not specific to alcohol. But beyond that even if it was specific only to ethyl alcohol to the exclusion of everything else, there are still so many variables that make us all different, and make the machine far from accurate, precise and reliable. It is specifically set to test the “average person”. Well, in the history of the world, the “average” person is dead, female and Chinese. Not a lot of dead people on trial. So trying to test based on the “average”, isn’t fair.
There are many physiological factors that can cause the Breath machine to beat you.
- long exhalation time into analyzer
- test made during the absorption phase of the blood alcohol curve when arterial venous difference in concentration of alcohol is greatest
- presence of mouth alcohol when breath sample was analyzed
- re-breathing of the first exhalation a number of times before analysis of ethanol
- breath holding or hypoventilation before sampling breath
- elevated body temperature hyperthermia
- non-specific method of analysis and presence of interfering substance
- Partition ratio
In the United States, all breath testing devices are set in a specific way. They depend on the assumption that the ratio between alcohol in the exhaled breath in deep lung air and alcohol in the blood is 1 to 2100. This ratio is called the “Partition Ratio”. To be very precise, the theory that the machine is based on is that the same weight of alcohol will be present in one cubic centimeter of pulmonary (lung) blood as in 2.1 liters of deep lung breath. However, these same exact machines in other countries have the partition ratio differently configured. For example in England, it is based upon a 1 to 2300 ratio.
Why does that matter? Well, the machine is designed to produce a reading based on that assumption. So if the assumption is wrong. The reading will be wrong every time. The truthfulness of the reading rises and falls on this one key ratio. Everyone is different. Stated more directly, not everyone has the same partition ratio. Not everyone is 1 to 2100. The actual ratio in any given individual can vary from less than 1:1300 to more than 1:3000. In fact, some peer reviewed research suggests that a person is not born with one set ratio and it can change over one’s lifetime.
To make sense if all of this let’s look at some real-world numbers. Suppose that the machine says that you have a 0.09 reading and you have a partition ration of 1:1700, your true Blood Alcohol Content (BAC) would be below the legal limit of 0.08. Suppose the machine reads that you have a 0.10 reading and you have a partition ration of 1:1500, your true BAC would be 0.07. So in essence, the machine has beat you.
Imagine a place where you are accused of a crime. Where you can lose your liberty. Where you can lose your job. Where you can lose everything you have worked so very hard for.
Imagine that during this trial, the Government only introduced a single piece of paper that reads “You’re Guilty”. That’s it.
Imagine during that trial, you have no way of challenging or questioning that single piece of paper. That is it. You are guilty.
Where is that place???
Iraq? Afghanistan? China? North Korea?
It was actually, here, in the good old United States. That was until last week. That is exactly what happened all across the United States and even in the Commonwealth of Pennsylvania.
But, you say, we have The United States Bill of Rights and the Sixth Amendment which reads:
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