California DUI

Breathalyzer Tests

Conkle, Camp and Welch entitled Trace Composition of Human Respiratory Gas, 30 Archives of Environmental Health 290 (1975). The researchers analyzed the breath of eight test subjects and found "the presence of 69 different compounds in the expired air of eight men." Id. at 292. Another article, by Krotoszynski, Gabriel and O'Neill, Characterization of Human Expired Air: A Promising Investigative and Diagnostic Technique, 15 Journal of Chromatographic Science 240 (1977), described analysis of air samples taken from 28 "average" human subjects. This study found that the "combined expired air comprises at least 102 various organic compounds of endogenous and exogenous origin." Id. at 244. The researchers further concluded that "400% of the constituents (70% of the mean organic contents) are common to 76% of the population studied." Id. at 244. Finally, Canadian scientists have reported that "approximately 200 compounds have been detected in the human breath." Manolis, The Diagnostic Potential of Breath Analysis, 29(1) Clinical Chemistry 5 (1983).

Brick, Diabetes, Breath Acetone and Breathalyzer Accuracy: A Case Study, 9(1) Alcohol, Drugs and Driving (1993), a researcher found that expired ketones in the breath of an untreated diabetic can contribute to erroneously high breath-alcohol readings. Further, the acetone on the breath from ketoacidosis will result in an odor of alcohol. Finally, behavioral patterns of a diabetic whose blood-sugar level has dropped will include slurred speech, slow gait, impaired motor control, fumbling hand movements and mental confusion—all symptomatic of intoxication.

The National Highway Traffic Safety Administration has published a report entitled The Likelihood of Acetone Interference in Breath Alcohol Measurement (DOT HS—806-922). The report basically summarizes scientific literature on the subject, concluding that normal individuals have insignificant levels of acetone on their breath. The data indicated, however, that dieters can have higher levels and that diabetics not in control of their blood-sugar had levels hundreds or even thousands of times higher than normal. Unfortunately, the authors did not determine what effect such levels would have on a breath testing device; they simply concluded that at levels rendering the individual "not too ill to drive," the breath reading would be raised by only .01-.02 percent. The authors (and it must be recognized that this federal agency has been consistently law enforcement-oriented, to the point of suppressing unfavorable results of radio frequency interference tests, for example) also conclude that the only instrument significantly affected by acetone interference is the Intoxilyzer 4011A.

Excretion of Low-Molecular Weight Volatile Substances in Human Breath: Focus on Endogenous Ethanol, 9 Journal of Analytical Toxicology 246 (1985), has concluded that acetone can exist in some normal individuals in quantities that can create falsely high results in a breath-alcohol test. For a study confirming the effects of increased levels of acetone in dieters, see Frank and Flores, The Likelihood of Acetone Interference in Breath Alcohol Measurement, 3 Alcohol, Drugs and Driving 1 (1987). In that study, researchers found that fasting can increase acetone to levels sufficient to obtain readings of .06 percent on breath testing instruments.

Mormann, Olsen, Sakshaug and Morland, Measurement of Ethanol by Alkomat Breath Analyzer; Chemical Specificity and the Influence of Lung Function, Breath Technique and Environmental Temperature, 25 Blutalkohol 153 (1988). Diabetic subjects in that study also were found to have acetone levels sufficient to produce breath-alcohol readings of .06 percent.

Jauhanen, Baraona, Hiyakawa and Lieber, entitled Origin of Breath Acetaldehyde During Ethanol Oxidation: Effect of Long-Term Cigarette Smoking, 100 Journal of Laboratory Clinical Medicine 908 (1982). The researchers discovered that the amount of acetaldehyde in the lungs was considerably greater than the amount that would be expected if passed from the liver by way of the blood into the lungs. Furthermore, the elevated amounts of acetaldehyde in the lungs were not predictable — they varied according to the individual. Thus, for example, it was found that acetaldehyde concentrations in the lungs were far greater for smokers than for nonsmokers. Translated into practical effect, smokers are more likely to have high blood-alcohol readings, regardless of their true blood-alcohol level.

Stowell, et al., A Reinvestigation of the Usefulness of Breath Analysis in the Determination of Blood Acetaldehyde Concentration, 8(5) Alcoholism: Clinical and Experimental Research 442 (1984). The conclusion of the researchers was, again, that the acetaldehyde in the lungs was not coming from the liver by way of the blood, but was being produced in the lungs themselves and exhaled in much larger quantities than would be expected. End result: falsely high breath test readings.

Lindros, et al., Elevated Blood Acetaldehyde in Alcoholics and Accelerated Ethanol Elimination, 13 (Supp. 1) Pharmacology, Biochemistry and Behavior 119 (1980), scientists discovered that acetaldehyde in the breath and blood of alcoholics was 5 to 55 times higher than that in non-alcoholics. Thus increased acetaldehyde — and consequent falsely high blood-alcohol readings — can be attributed to the makeup of the alcoholic's physiology. Of course, California DUI lawyers should consider the risks in bringing this information out for the jury to ponder.

In an article appearing in 7(4) Drinking/Driving Newsletter 3 (February 19, 1988), a test conducted by the Demers Laboratory in Springvale, Maine, is described wherein a subject was tested after exposure under realistic field conditions to paint and glue. The subject entered a test room and applied a pint of contact cement to a piece of plywood; he then applied a gallon of oil-base paint to a vertical surface. This activity lasted about one hour.

Twenty minutes after leaving the room, the subject was tested on the Intoxilyzer. Results? Despite the subject's having no alcohol in his body, the machine registered .12 percent—over the legal limit. The subject was tested again one-half hour later: Readings of .05 and .04 percent were obtained.

Giguiere, Lewis, Baselt and Chang, Lacquer Fumes and the Intoxilyzer, 12 Journal of Analytical Toxicology 168 (1988). Scientists performed tests on a professional painter who was exposed to lacquer fumes under controlled conditions. In the first test, he sprayed paint in a room for 20 minutes, wearing a protective mask; his blood and breath were then tested. Although the blood test showed no presence of alcohol, an Intoxilyzer 4011-AS indicated a reading of .075 percent BAC.

Ten minutes later, the painter sprayed the same room for five minutes—but this time without the protective mask. The blood test again showed no BAC. The Intoxilyzer, however, registered a reading of .48 percent! Perhaps most interesting, the Intoxilyzer was equipped with an acetone detection light designed to detect the presence of any interfering compounds — yet at no time during the test did the light indicate the presence of any such compounds.

August 24, 1988, edition of the Spokane Spokesman Review, an individual in a Sandpoint Idaho jail awaiting trial for drunk driving claimed that he had been siphoning gasoline; when he sucked on the hose, he swallowed some of the gasoline, which later caused a high reading on a breath test. He managed to talk the sheriff into a demonstration to prove his story. Taken from his cell after one week of incarceration, he swallowed a cup of unleaded gasoline; after various periods of time, he blew into an Intoximeter.

The results? After 5 minutes, the reading was .00 percent; after 10 minutes, .04 percent; after 20 minutes, the machine registered .31 percent; and after one hour, the reading was .28 percent. Three hours after ingestion, the individual still blew a .24 percent on the Intoximeter! A quick call to a gasoline distributor confirmed that gasoline contains no alcohol.

8(3) Drinking/Driving Law Letter 6 (1989). The CMI technicians mixed a simulator solution of 800 micrograms of gasoline with 500 milliliters of distilled water, then introduced it into an Intoxilyzer 5000. The solution produced readings of .619 percent, .631 percent and .635 percent.

Bell, et al., Diethyl Ether Interference with Infrared Breath Analysis, 16 Journal of Analytical Toxicology (1992), for a study that concluded that ''[t]he possibility of interference with an alcohol reading by ether or by other substances may therefore render prosecution more difficult, if not impossible."

Cowan, et al., The Response of the Intoxilyzer 4011ASA to a Number of Possible Interfering Substances, 35(4) Journal of Forensic Sciences 797 (1990). One of the substances, methyl ethyl ketone, is used in lacquers, paint removers, cements and adhesives, celluloid and cleaning fluids. Another, toluene, is used in paints, lacquers, varnishes and glues. The third is isopropanol, commonly known as rubbing alcohol.

Phil Price, a nationally prominent DUI attorney in Montgomery, Alabama, conducted a series of experiments in which subjects ingested various foods and were then tested on an Intoxilyzer 5000 (64-series). Interestingly, bread caused the highest readings! Using alcohol-free subjects, Price consistently obtained readings in the area of .05 percent after consumption of various types of bread products. Further, the slope detector failed to detect any interference during the tests.

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