breathalyzer

[peanut44]

I don't think a breathalyzer test is ever the only piece of evidence. I am not a cop, but I do know they don't go asking people to blow when they pull them over unless there is sufficient cause like the smell of alcohol, erratic driving etc. Those factors along with the breathalyzer test usually justify a DUI charge. You can always explain your case to a jury if you disagree with it.

This has nothing to do with my case. It has nothing to do with the fact that there are USUALLY other factors, I agree that there are.

The fact is that the law doesn't REQUIRE that there are any other factors, only >.08

 

[justalayman]

A machinist making a part checks his accuracy each time with a micrometer, it makes sense does it not. "Measure twice, cut once". The majority of states only check their machines "periodically" though. Shouldn't a person deserve BETTER accuracy than a wheel bearing?
Sorry, I had to kick that one back at you. The fact remains that the machine is testing air and not blood. That leaves lots of room for error. The law that relies on it has the same error.

The machines have been studied and a time period has been established during which they are considered to be operational and accurate. If they are not checked within the requisite interval, a defendant can use this to get the reading tossed. This is not an arbitrary number but one that has been accepted after studies to determine how accurate they are and how long they typically remain accurate. So the "periodic" time period has been proven to be acceptable.

As long as they have proven themselves to remain accurate between the requisite time periods, they are reliable within this time period.
Now to your "air" v. "blood". There are many testers that test levels of a substance in the air. Devices such as this can be made as accurate as desired. A breathalyzer has proven itself to be reliable for testing "air". You also discount the fact that these have been compared to benchmark tests to prove their accuracy.

So bottom line is, they have been proven to be accurate.


Oh, and the wheel bearing thing, Consider that the angstrom is used in some "machining" as the unit of measure.

 

[peanut44]

The machines have been studied and a time period has been established during which they are considered to be operational and accurate. If they are not checked within the requisite interval, a defendant can use this to get the reading tossed. This is not an arbitrary number but one that has been accepted after studies to determine how accurate they are and how long they typically remain accurate. So the "periodic" time period has been proven to be acceptable.

As long as they have proven themselves to remain accurate between the requisite time periods, they are reliable within this time period.
Now to your "air" v. "blood". There are many testers that test levels of a substance in the air. Devices such as this can be made as accurate as desired. A breathalyzer has proven itself to be reliable for testing "air". You also discount the fact that these have been compared to benchmark tests to prove their accuracy.

So bottom line is, they have been proven to be accurate.


Oh, and the wheel bearing thing, Consider that the angstrom is used in some "machining" as the unit of measure.

You point to studies about requisite time periods, yet many states have DIFFERENT time period requirements. clearly, there are different studies showing different results. Some check the machines often, some not so. I believe that the truth lies somewhere between accuracy and cost. I'm not a fan of having someones freedom sacrificed because it was a little cheaper.

In spite of my arguments, I do believe that the breathalyzer does a good job of measuring the alcohol in the breath, or "air". I don't believe it accurately measures blood. In fact, don't most "experts" say that a blood test will usually come back higher than breath? If it was accurate, they'd come back the same.

Finally, just knowing that a machine can be "fooled" by alcohol in the mouth, length of time in the lungs, smoking, or whatever else reasons there are, means that the machine is in fact fallible, and therefore not worthy of being the only consideration in a criminal case.

I'm going to google angstrom

 

[justalayman]

angstrom defined

it's a very very small distance

 

[CdwJava]

1. booze in your mouth, but NOT ingested WILL register on the breathalyzer machine. For example, if you swish a mouthful of whiskey, then spit, then blow, it will register higher than your actual BAC by quite a bit.

Not true.

It may depend on the machine, but the majority of those today will discern the difference in mouth alcohol and deep lung air. Most the machines will come up with an error when mouth alcohol is detected.

Additionally, this is why the machines are generally set to toss the test if the blows are greater than .02 difference between the first and subsequent registered blow. That way, if one (the first) has mouth alcohol, the others will not and the first test will cause the machine to toss it out and they get to do it all over again.

2. The length of time the breath is in the body has an effect also. The longer the time the air is in the lungs, the more alcohol it will absorb from the blood. This is simple science. It takes time for solutions to mix.

Read up on it a little more. The air is constantly circulating through your longs and through the alveolus. This is where the air receives an exchange of gas (and the alcohol) from the blood.

These are 2 simple facts that are true, I have witnessed them both. Being that the breathalyzer is not ALWAYS true, how can there be a law that says "it is illegal to blow into this machine and register .08 or higher"?

That isn't the law. The law is (in one phrase or another) that it is unlawful to operate a motor vehicle with a BAC of .08 or greater. It does not say that "the machine" must register it. However, absent a blood test, and with appropriate and accepted testing and maintenance of the devices, the machines are considered to be reliable for the purpose of determining BAC. If the BAC comes in at .08 or .09, a good DUI attorney MIGHT be able to compel a DA to plead down to a lesser DUI (DUI of less than .08, wet reckless, or whatever the state in question offers for DUI below .08), but to go to trial on such a technical matter is an expensive proposition for the defense and is not a guaranteed win.

In my personal experience, I have not seen one of those arguments win at trial. But, I have known DA's to plead on .08 or close cases where evidence of bad driving was not observed - even if the FSTs were bad.

The truth is, this machine, just like any other machine CAN be inaccurate.

So can witnesses ... so can computers. Fortunately, the system does not require ABSOLUTE proof of guilt, only proof beyond a "reasonable doubt".

lie detectors are not even admissable in a criminal court of law.

This is because they are subjective in nature, and not objective. Two evaluators can read the data differently. This makes "lie detectors" a difficult item to pass the Kelly-Frye rule.

a radar gun can be backed up by a statement that the vehicle was traveling "at a high rate of speed". Can there be a witness that says I saw the blood, and it looked to be about .15% alcohol? "Not .1%, or .2% but .15"

Sure. My state's crime lab technicians do that all the time ...w ell, in a manner of speaking, They run the blood through a machine and get the results. Oh, but I assume their machines are inaccurate as well.

So my question is.... Dou you agree with the current Per Se laws used in many states, or do you think that physical manifestations need to be proven?

I think they should be lowered.

Good thing for some folks that my opinion is not (yet) the prevailing opinion.

- Carl

 

[BigMistakeFl]

" It is illegal to drive witha BAC over .08."

Not so. It is illegal to drive while impaired. That's all that has to be proven in a successful prosecution for DUI. The breathalyzer is only one piece of evidence, and it doesn't have to be 0.08.

 

[peanut44]

Not true.

It may depend on the machine, but the majority of those today will discern the difference in mouth alcohol and deep lung air. Most the machines will come up with an error when mouth alcohol is detected.

Additionally, this is why the machines are generally set to toss the test if the blows are greater than .02 difference between the first and subsequent registered blow. That way, if one (the first) has mouth alcohol, the others will not and the first test will cause the machine to toss it out and they get to do it all over again.


Read up on it a little more. The air is constantly circulating through your longs and through the alveolus. This is where the air receives an exchange of gas (and the alcohol) from the blood.


That isn't the law. The law is (in one phrase or another) that it is unlawful to operate a motor vehicle with a BAC of .08 or greater. It does not say that "the machine" must register it. However, absent a blood test, and with appropriate and accepted testing and maintenance of the devices, the machines are considered to be reliable for the purpose of determining BAC. If the BAC comes in at .08 or .09, a good DUI attorney MIGHT be able to compel a DA to plead down to a lesser DUI (DUI of less than .08, wet reckless, or whatever the state in question offers for DUI below .08), but to go to trial on such a technical matter is an expensive proposition for the defense and is not a guaranteed win.

In my personal experience, I have not seen one of those arguments win at trial. But, I have known DA's to plead on .08 or close cases where evidence of bad driving was not observed - even if the FSTs were bad.


So can witnesses ... so can computers. Fortunately, the system does not require ABSOLUTE proof of guilt, only proof beyond a "reasonable doubt".


This is because they are subjective in nature, and not objective. Two evaluators can read the data differently. This makes "lie detectors" a difficult item to pass the Kelly-Frye rule.


Sure. My state's crime lab technicians do that all the time ...w ell, in a manner of speaking, They run the blood through a machine and get the results. Oh, but I assume their machines are inaccurate as well.


I think they should be lowered.

Good thing for some folks that my opinion is not (yet) the prevailing opinion.

- Carl

I wish I knew how to use your fancy quotes.
Accuracy of the test- You state that it DEPENDS on the machine, and MOST machines do xxxxx, but by your own admission, a test could be within a margin of error of 25% in either direction (at a .08 level) for a total of 50%. Also, you state that if there are any "false" readings, you just keep going until you get 2 that are "close". HUH? Do you honestly believe that this should be the only evidence required to convict?

As far as being able to "fool" the machine, all I know is what I've seen. The alcohol in the mouth was on a state machine, the longer breath was on a vehicle mounted machine. There are studies that show their accuracy, as well as ones that show their inaccuracy. Both have been done by certified professionals with varying results.

With regards to the cases at .08 or .09 being plead down with a good attorney. Why should a person have to defend themself at all? Why would a prosecutor plead out a case where they had evidence? Maybe because it's a faulty law, based on a faulty test?

Then you say the folks down at your crime lab test blood all day.Let me ask you this.... Do they get results that are here and there? do they just keep testing the same sample to see what they get? Most likely, their standards of accuracy are much tighter because they are testing actual blood, therefore they can get an actual reading on how much alcohol is in the BLOOD. On a breath machine, all that is known is how much is on the breath, because that's what it was testing.

All that you guys claim is that the "law" says that if they're checked every so often, or that you get 2 close readings in a row, that they can be considered as accurate. I'm saying that the "law" is fouled in that it sacrifices accuracy for easiness, or cost.

Why rely on a breath machine, to measure blood? Because it's easier, and/or cheaper. What would you say if the IRS's calculators were off by 10% sometimes, even though they usually averaged out over the course of a year? Oh yeah, and the IRS passed a law that said their inaccuracy was "acceptable" and if your numbers didn't match theirs, well, you'd have a whole lot of problems coming your way.

 

[fagettaboutit]

" It is illegal to drive witha BAC over .08."

Not so. It is illegal to drive while impaired.

Yes so. It is absolutely illegal to drive with a .08> BAC. It's called "Illegal Per Se." If the machine spits out a number at or above .08, this automatically "constitues" impaired driving. Regardless of whether the machine is working properly or not.

From MADD:

"Illegal per se" means that the operation of a vehicle by a person with a BAC at or above a legally defined numerical threshold (e.g., 0.08) constitutes an offense of impaired driving in and of itself. Laws of this type have been proven to have an impact in reducing driver involvement in fatal crashes.

The last line in their statement is subjective, but whatever.

 

[tranquility]

Go to:

http://www.duiblog.com/

For an excellent blawg that has many articles of the unreliablity, and source of that unreliability, of breathalizers.

 

[CdwJava]

Accuracy of the test- You state that it DEPENDS on the machine, and MOST machines do xxxxx, but by your own admission, a test could be within a margin of error of 25% in either direction (at a .08 level) for a total of 50%

That's not what I said. I said it could be off by as much as .02 in either direction. I think the standard deviancy is something like .0125 or thereabouts. And since the vast majority of machines in use are Intoximeter 5000s or newer devices (like CA's Praeger EPAS), they are pretty accurate. At least accurate enough to be considered reliable as evidence in every court in the nation that I know of.

Also, you state that if there are any "false" readings, you just keep going until you get 2 that are "close". HUH? Do you honestly believe that this should be the only evidence required to convict?

No you can't just keep going. The test i sthrown out if there is a gap of more than .020 between two blows. They can start again after waiting the appropriate time period to see that the subject consumes nothing, doesn't burp, etc. Then the new test can be performed and will be just as valid. Or, the officer can just go for blood and forego the breath machine.

Personally, I prefer blood.

And do I believe the breath test should be the ONLY evidence? Well, it's not. Before an officer can get someone in to custody and transported for the mandatory chemical test (be it blood or breath) he or she has to have established probable cause to make the arrest. That evidence can also be used to establish impairment.

As far as being able to "fool" the machine, all I know is what I've seen. The alcohol in the mouth was on a state machine, the longer breath was on a vehicle mounted machine. There are studies that show their accuracy, as well as ones that show their inaccuracy. Both have been done by certified professionals with varying results.

Possibly on older machines. I have seen "studies" all over the board. And DUI defense attorneies point only to those studies that support THEIR claims - not to the multitude of others.

But there are studies that show anomalies in many things - including those that show a bumblebee cannot fly.

However, these "studies" have failed to do anything to make the breath machines unreliable in court.

With regards to the cases at .08 or .09 being plead down with a good attorney. Why should a person have to defend themself at all? Why would a prosecutor plead out a case where they had evidence? Maybe because it's a faulty law, based on a faulty test?

Because its not faulty law. Perhaps if the machines were regularly off to the tune of .04 or more, but this is not the case. A difference of .02 is almost negligible.

But, I'll be happy to get away from .08 and make it against the law to drive with ANY alcohol in the system.

Then you say the folks down at your crime lab test blood all day.

I didn't say that. I don't know what they do all day ... but they do test blood. That's one of the many things they get paid for.

Let me ask you this.... Do they get results that are here and there? do they just keep testing the same sample to see what they get?

I don't know their standards. The labs and the employees are employees of the state of CA Department of Justice. They test what they get, and then they confirm their results, and then they send us a written copy of the results along with an affidavit by the lab technician. If the alcohol comes back below .08 - or at our request - they will also screen the blood for drugs.

Most likely, their standards of accuracy are much tighter because they are testing actual blood, therefore they can get an actual reading on how much alcohol is in the BLOOD.

From what I am told, the blood results typically come back higher (by up to .01) than on the breath machine. And in my experience this is also the case.

On a breath machine, all that is known is how much is on the breath, because that's what it was testing.

And the breath comes from the lung air which has the alcohol attached to the gas passed from the air sac.

All that you guys claim is that the "law" says that if they're checked every so often, or that you get 2 close readings in a row, that they can be considered as accurate. I'm saying that the "law" is fouled in that it sacrifices accuracy for easiness, or cost.

Great. Then campaign for office and change the law. See how far getting softer on DUIs will get you. You are certainly free to do this.

Personally, I would have no problem refusing all options and going straight for blood. This would also get us a chance to find out WHAT is in everyone's system. Right now we look first for alcohol and the effects of drugs (including marijuana) is not accounted for very well in DUI stats. If we did all blood and we also tested them for drugs, we could get a much more accurate picture of the problem.

Plus, at least in CA, drivers have their choice of blood or breath. And, after taking a breath test they are given a choice of having blood taken so that they could have it tested later at their own expense for court. It is all the driver's choice.

In the meantime, the law stands as it is.

Why rely on a breath machine, to measure blood? Because it's easier, and/or cheaper.

That, and it's reasonably accurate. Remember that the standard of proof is proof beyond a "reasonable" doubt - not beyond a shadow of a doubt.

What would you say if the IRS's calculators were off by 10% sometimes, even though they usually averaged out over the course of a year? Oh yeah, and the IRS passed a law that said their inaccuracy was "acceptable" and if your numbers didn't match theirs, well, you'd have a whole lot of problems coming your way.

Not an apt analogy. Anyone can do math. Not everyone can evaluate the amount of alcohol in deep lung air.

- Carl

 

[fagettaboutit]

They run the blood through a machine and get the results. Oh, but I assume their machines are inaccurate as well.

Big difference. Blood can retested by an independent lab. Breath samples can't. The law should require all breath samples be saved so if needed, they can be retested.

 

[fagettaboutit]

peanut44,

I would strongly suggest you read this:
http://www.duiblog.com/2005/10/04#a251

And then read this:
Why Breathalyzers don’t measure alcohol
http://www.duiblog.com/2004/11/20#a51

Excerpt: ..."That’s right: Breathalyzers don’t actually measure alcohol. What they actually detect and measure is any chemical compound that contains the methyl group in its molecular structure. There are thousands of such compounds -- including quite a few which can be found on the human breath. And this machine that determines a person’s guilt or innocence will "see" all of those chemicals as alcohol -- and report a falsely high "blood-alcohol" concentration (BAC)"

Carl wrote:

Not everyone can evaluate the amount of alcohol in deep lung air.

That's right, Carl, and nor can a machine accurately evaluate blood-alcohol levels caused solely by consumption of beverages containing alcohol.

 

[peanut44]

That's not what I said. I said it could be off by as much as .02 in either direction. I think the standard deviancy is something like .0125 or thereabouts. And since the vast majority of machines in use are Intoximeter 5000s or newer devices (like CA's Praeger EPAS), they are pretty accurate. At least accurate enough to be considered reliable as evidence in every court in the nation that I know of.


No you can't just keep going. The test i sthrown out if there is a gap of more than .020 between two blows. They can start again after waiting the appropriate time period to see that the subject consumes nothing, doesn't burp, etc. Then the new test can be performed and will be just as valid. Or, the officer can just go for blood and forego the breath machine.

Personally, I prefer blood.

And do I believe the breath test should be the ONLY evidence? Well, it's not. Before an officer can get someone in to custody and transported for the mandatory chemical test (be it blood or breath) he or she has to have established probable cause to make the arrest. That evidence can also be used to establish impairment.


Possibly on older machines. I have seen "studies" all over the board. And DUI defense attorneies point only to those studies that support THEIR claims - not to the multitude of others.

But there are studies that show anomalies in many things - including those that show a bumblebee cannot fly.

However, these "studies" have failed to do anything to make the breath machines unreliable in court.


Because its not faulty law. Perhaps if the machines were regularly off to the tune of .04 or more, but this is not the case. A difference of .02 is almost negligible.

But, I'll be happy to get away from .08 and make it against the law to drive with ANY alcohol in the system.


I didn't say that. I don't know what they do all day ... but they do test blood. That's one of the many things they get paid for.


I don't know their standards. The labs and the employees are employees of the state of CA Department of Justice. They test what they get, and then they confirm their results, and then they send us a written copy of the results along with an affidavit by the lab technician. If the alcohol comes back below .08 - or at our request - they will also screen the blood for drugs.


From what I am told, the blood results typically come back higher (by up to .01) than on the breath machine. And in my experience this is also the case.


And the breath comes from the lung air which has the alcohol attached to the gas passed from the air sac.


Great. Then campaign for office and change the law. See how far getting softer on DUIs will get you. You are certainly free to do this.

Personally, I would have no problem refusing all options and going straight for blood. This would also get us a chance to find out WHAT is in everyone's system. Right now we look first for alcohol and the effects of drugs (including marijuana) is not accounted for very well in DUI stats. If we did all blood and we also tested them for drugs, we could get a much more accurate picture of the problem.

Plus, at least in CA, drivers have their choice of blood or breath. And, after taking a breath test they are given a choice of having blood taken so that they could have it tested later at their own expense for court. It is all the driver's choice.

In the meantime, the law stands as it is.


That, and it's reasonably accurate. Remember that the standard of proof is proof beyond a "reasonable" doubt - not beyond a shadow of a doubt.


Not an apt analogy. Anyone can do math. Not everyone can evaluate the amount of alcohol in deep lung air.

- Carl

If anyone can do math**************. why aren't they?


You say the standard deviation is .0125. That means that the machine's accuracy is within .0125 68% of the time. That means that a person who registers .08 has a 68% chance of being between .0675 and .09125 a 95% chance of being between .055 and .105.

What it all means, is that this machine HAS a STANDARD deviation of ERROR. A fairly large one at that. A person who blows a .08 has a 50/50 of being under or over. That IS reasonable doubt.

When you clock someone @ 80mph with your radar gun, does it have an acceptable (68%) margin of error of 68 to 91 mph? That would be a joke, just like the beloved breathalyzer...

Yes, the breath test is not usually the only evidence, but this law doesn't require any other factors. why does this law even need to be on the books?



And finally Carl, why don't YOU run for office, on the basis of dropping the BAC limit to 0.00, and mandatory roadside blood tests for anyone with red eyes. See how many votes you get.


I'd also like to add that you guys have been putting up some reasonable, although IMO wrong opinions, at least your above all of the name calling that the other folks around here are into.

Just because the law says so, it don't make it right, or moral, or reasonable. I think you know that.