Breath analyzer and alternative tests

[MindsEye]

What is the name of your state?What is the name of your state? North Carolina.

I have been curious about various issues regarding DUI (specifically in North Caroloina). So when a person is lawfully pulled over and the police officer suspects the driver is intoxicated, refusal to take the breath analyzer test can result in a one year license suspension and a DUI conviction. However, does the driver have the right to request an alternative chemical analysis (urine or blood) on the grounds that they question the validity of a breath analyzer? The portable units that police carry are not always accurate. Like many previous posting have stated, having one drink right before you get behind the wheel, can result in a person blowing in excesses of .20 if they are immediately stopped (which of course can not possibly be there blood alcohol level unless they weight less than 50 pounds or it was one hell of a drink). So can a person request an alternative chemical test? I know in Florida, upon submitting to a breath analyzer test, a person has the right to request a secondary alternative chemical test (urine or blood, not some field coordination test conducted by the officer at the scene). Can anyone point me to the laws that would govern this issue? People's metabolisms, lung efficiency, timing, and many other physiological and circumstantial factors come into play in order to translate the breath alcohol level to a true blood alcohol level. Would a professional opinion on the validity of a breath analyzer technology help a case solely based on what a breath analyzer reported (e.g. no swerving, no speeding, no slurred speech, etc)? I am currently finishing up my Ph.D. in molecular biology and definitely feel that a breath analyzer is not an accurate method to determine a person’s blood alcohol level. Does this constitute a professional opinion that I could use in court if I ever was falsely convicted of a DUI? I could gargle with Jack Daniels before I leave the house, and I would blow over a 0.08 for at least half an hour afterwards, even though my true blood alcohol level would be almost zero. Of course I must say that I never drink and drive, but I have gotten behind the wheel after having a glass of wine or two at dinner, and often without thinking the last thing I do before getting up to go is finish up my drink; so alcohol is right on my breath. Thanks in advance for any help.

[Alchohol_Free]

This a technicality question that an attorney would have to answer.

The breathlyzer is the standard used for assessing one's BAC and it's reflection on whether the driver is impaired or not. The issue is what was the BAC at the time the driver was operating a motor vehicle? How many drinks the person had is really irrelevant.

I suppose one could try to challenge it with a scientific arguement about what's "true" BAC and whatever. It would be highly unlikely that that would hold up. The point is, that the officer observed either driving characteristics that led him/her to suspect impairment, or observations after pulling someone over that led him/her to suspect that the driver may be impaired.

There are several molecular level theories out there that I've heard that challenge the accuracy of a breathlyzer, but I'll bet you would be hard pressed to find an attorney that's ever used this in court.

[snostar]

Technically, you can ask to have lunch with the Pope. You can request anything you want, but I have found no laws in NC that require and officer to provide an alternate test. Breathalizers have established a standard for evidence.

[CdwJava]

Originally Posted by MindsEye

So when a person is lawfully pulled over and the police officer suspects the driver is intoxicated, refusal to take the breath analyzer test can result in a one year license suspension and a DUI conviction.

In most cases.

However, does the driver have the right to request an alternative chemical analysis (urine or blood) on the grounds that they question the validity of a breath analyzer?

He can ask, but there is no law that I know of ANYWHERE that permits an alternative test simply because the suspect does not trust the results.

In some states (such as mine) you can opt for blood (and on rare occasions, urine) instead of breath, and you can also get a blood draw in addition to breath that the defendant can have tested at his own expense later if he/she wishes.

The portable units that police carry are not always accurate.

It depends on the device and the maintenance.

having one drink right before you get behind the wheel, can result in a person blowing in excesses of .20 if they are immediately stopped

If so, it is an incredibly piss-poor machine with lousy maintenance. None of the devices I have ever seen in use (in California) would do that ... even the cheapest handheld PAS devices.

So can a person request an alternative chemical test?

Your test options are limted by state law. But, I believe that most states give you an option. In CA you get blood or breath ... and on rare occasions, urine.

Can anyone point me to the laws that would govern this issue?

Do a google search for DUI laws in your state of interest.

People's metabolisms, lung efficiency, timing, and many other physiological and circumstantial factors come into play in order to translate the breath alcohol level to a true blood alcohol level.

Not as much as you seem to think. The amount of alcohol in the blood (as extrapolated from the deep lung air) is what it is. It's present or it's not ... if you are bigger, then the BAC will be lower ... if you are smaller, the same number of drinks will result in a higher BAC. Metabolism will effect on how fast it enters the bloodstream, but that in no way makes the measurement inaccurate or invalid.

Would a professional opinion on the validity of a breath analyzer technology help a case solely based on what a breath analyzer reported (e.g. no swerving, no speeding, no slurred speech, etc)?

Challenging the validity of a breath machine tends to be an expensive affair that is best left to attorneys that specialize in DUI defense. And bringing in experts to challenge the machine can be a very costly affair ... and, in my experience, is no better than flipping a coin with regards to success.

Does this constitute a professional opinion that I could use in court if I ever was falsely convicted of a DUI?

If you can support your contentions. But, since you would also be the defendant, taking the stand would certainly open you up to cross-examination by the prosecution, and unless you have ample credentials in the medical field for the specifics of the operation of the breath device, your professional evaluation would likely be of little value. I doubt that your attorney would want you to take the stand as a professional witness.

I could gargle with Jack Daniels before I leave the house, and I would blow over a 0.08 for at least half an hour afterwards, even though my true blood alcohol level would be almost zero.

And just what handheld device were you using? We tried that at DRE school, and got goose-eggs all around (though I heard one class got a .01 or a .02 reading) ... that deep lung air tends to be unaffected by mouth alcohol on any machine produced in the last several years.

I can't speak to the devices used by all states, so I don't know what the readings might be. However, the handheld devices used in the field by officers DO tend to be less reliable than the larger devices used for the "official" test. The maintenance and accuracy of these field devices tends to be a little less accurate, so they tend not to be permitted for proof of the BAC. Generally, they are permitted ONLY to help further establish cause to make an arrest for DUI and then to compel a state mandated test (blood, breath or urine - as required).

- Carl