Challenging Breath Tests

Why Experience Matters: Challenging Breath Tests

There are plenty of DUI attorneys out there. Each one has a different level of experience and a different way of handling cases. Some attorneys try to simply negotiate a plea in every case. We are not that firm.

At Bowser Law, we pride ourselves on fighting for the citizens accused of a crime. We take cases to trial to fight for the best possible result for our clients. When you decide to fight, experience matters. Attorney Bowser’s results prove his success.

In this blog series, we will detail some examples of how experience makes a difference in DWI/OUI cases. Previously in this series, we have covered:

Today we will look at Challenging Breath Tests.

Many drivers believe that if they blow a number over the legal limit, a conviction is a forgone conclusion. This could not be further from the truth. A breath test result is just one piece of evidence and an experienced DUI attorney may be able to successfully challenge that result.

Breath testing for DUI is notoriously flawed. There are many common issues which could produce an unreliable test result. For example:

  • Breath Testing is not specific to ethanol, the type of alcohol found in beverages. In fact, certain cosmetics, lotions, hand sanitizers, and mouthwashes can trigger a higher than normal result. Use of nail polish remover, common household cleaners, or paint thinner can also cause the breath test to show an artificially high number.
  • Certain chemicals in the body can also cause breath tests to show a higher number. This can happen under certain medical conditions like if a diabetic experiences low blood sugar for example.
  • One common problem is that of residual mouth alcohol. When there is still alcohol in the mouth, this can produce a very high breath test reading which is not in line with what is actually in the body.
  • Breath testing does not measure the amount of alcohol in the blood. The machine measures the amount of alcohol in a breath sample and then makes a number of assumptions about how alcohol is processed in the body to convert that number to what is in the blood. However, these assumptions can lead to many inaccuracies. Alcohol is processed at a very different rate by a 120lb woman as opposed to a 280lb man.
  • Breath machines must be maintained and calibrated based on very specific guidelines. Police departments are often very lax in following these procedures and this can lead to invalid test results.

Attorney Mike Bowser has extensively studied the forensic science behind breath testing and uses that knowledge to protect his clients. If there are medical or technical issues that can be used to explain the result, he will raise those and fight for your rights. Call Attorney Mike Bowser at (888) 414-9202 today for your free case consultation.

The Problems with Breath DUI Testing

Breath testing for DUI can be very problematic. However, most drivers, and far too many attorneys, really do not understand how frequent these problems arise. In this post, I will highlight some of the common problems with DUI breath testing.

Breath Testing Machines Cannot Measure Just Ethanol

Ethanol is the substance in wine, beer, or other alcoholic beverages. Breath testing machines cannot measure ethanol exclusively. The machines measure substances that carry a similar chemical makeup and therefore, they can falsely produce a high number due to the presence of isopropyl alcohol and methanol.

Isopropyl alcohol, more commonly known as rubbing alcohol, is a common disinfectant that can be found in hand sanitizers. It can also be found in many cosmetics and lotions. Methanol is commonly used as an industrial solvent. It can be found in paint thinner, for example.

Because breath testing machines are not specific to ethanol, a driver who uses common products like hand sanitizer, mouth wash, or paint thinner can produce an inflated (and, thus, inaccurate) Blood Alcohol reading.

There is a Difference Between a 105 lb Woman and a 280 lb Man

Every person’s body is different and processes alcohol differently. Breath testing machines measure the content of alcohol in a breath sample and then convert that to an estimated blood alcohol content. The conversion factor that is used is called a partition ratio. However, since every person is different, partition ratios are also different and the assumed ratio can lead to an artificially high blood alcohol reading.

Residual Mouth Alcohol

Another problem with breath testing is over reporting due to residual mouth alcohol. If someone has consumed alcohol just before the breath test, there may be alcohol left over in the mouth. The machines falsely interpret this to mean that there must be more alcohol in that person’s system than the actual amount of alcohol. This is why police officers are required to administer an observation period before testing a driver. If this procedure is not followed correctly, the breath machine can report a high number.

As you can see, there are many problems with breath testing machines. Unfortunately, most attorneys do not know enough about the science behind the testing to be able to identify and challenge these issues in court. This is why it is important to find an experienced DUI attorney who has the knowledge and training to correctly fight your case.

Attorney Mike Bowser is a Board Certified DUI Specialist. This means he had to pass a rigorous examination process that tested his knowledge of DUI science. If you want his superior knowledge and skill on your side, all you have to do is call 888-526-9737 and schedule your free consultation.

Are Portable Breath Tests Reliable?

I get a lot of questions about the portable breath tests. Police officers use these devices at roadside to see if a driver is “over the limit”. But are these devices even accurate?

These inexpensive devices are notoriously inaccurate and can over report your BAC greatly. There are a few reasons for this.

Issue #1: Residual Mouth Alcohol

One of the issues with the portable breath tests (PBTs) is that it is susceptible to over reporting due to “residual mouth alcohol”. This is the alcohol that is still in the mouth after a drink. The device will see that as a high concentration of alcohol and over report the BAC, even though that level of alcohol is not present in the blood. This is a big issue that is common with these devices.

Issue #2: They Detect other Forms of Alcohol

PBTs can’t tell the difference between ethanol and other chemicals that have similar properties. This is why if you were using a paint thinner, hand sanitizer, nail polish remover, mouthwash and many other substances, the PBTs can over report your BAC.

Issue #3: They are not Specific to Alcohol

Many common substances, which have no similarity to ethanol, can also cause an inflated BAC reading. There have been tests done that show even simple foods like white bread can cause a reading on these devices.

If you have recently been pulled over for OUI or DWI and believe the PBT showed an inflated reading, please call us now at (888) 526-9737. At Bowser law, we will examine your case and formulate a strategy to protect your rights. People who can’t afford a DUI trust Mike Bowser.

Are Breath Tests Admissible in Court?

Dean Contover and Attorney Mike Bowser of Bowser Law discuss what breath tests are and under what circumstances they may or may not be admissible in a New Hampshire or Massachusetts court of law.

Dean: In regards to taking a – what’s that?

Mike:  Breath test.

Dean: Breath test. That’s what I was looking for.

Mike: There are two breath tests.

Dean: As you can see, every time I had that problem, so I want to . . ..

Forms of Breath Tests

Mike: There are two forms of the breath test. One is called the PBT, and PBT stands for Preliminary Breath Test or Portable Breath Test, and that’s the handheld device. It’s about the size of a smart phone. It has small strides of fuel cell device. It’s a single test. And they’ll say, “Will you take this test?”  And if you submit to that PBT in Massachusetts, it’s like a fourth or fifth field sobriety test. The officer can use it, look at the results, and admit in the system in making his arrest decision, but it’s not admissible in a court room against you.

Dean: How?

Mike: In the results, whether you refuse the PBT, or take it, over a 0.08%, there is no impact on your driver’s license.

Dean: Why is that?

Mike: Because it’s a preliminary, portable, less accurate, it’s not . . ..

Dean: It’s not calibrated.

Mike: Not to the extent that the device at the police station or the barracks. That’s the second level, that’s Intoxilizer Alcotest. It’s called, actually, Draeger Alcotest 9510 in Massachusetts. That particular device, that has legal consequences.

Legal Consequences for Being Over the Limit or Refusing Breath Tests at the Police Station

Mike: If you are over the legal limit, above 0.08% at the station, on that machine, your license would be revoked for 30 days. If you refuse that test at the station, that has a legal consequence.

It triggers what’s called the CTR – Chem Test Refusal – through the Registry, and that Chem Test Refusal, based on your prior record could be 180 days, three years, five years, or lifetime. If you have three priors under Melanie’s Law in your lifetime, and you refuse a breath test, your license is revoked for life, and the only way to get it back is to be acquitted, and found not guilty on the underlying OUI.