CHEMICAL BREATH
TESTING
And
Driving While
Intoxicated
Blood to Breath
Partition Ratio
In
New York State, a person can be charged with Driving While Intoxicated pursuant
to section 1192.2[1] of the
Vehicle and Traffic Law if they operate a motor vehicle while having .08% or
more of alcohol in their blood as shown by chemical analysis of their blood,
breath, urine or saliva.
Breath
testing is based upon the correlation between the amount of alcohol in a
person’s breath and blood, and the ability to measure that amount accurately
for each individual. In order to convert the breath sample into a blood alcohol
percentage, all machines utilize a “Breath to Blood Partition Ratio” of 2100 to
1. This partition ratio essentially
states that the amount of alcohol in one milliliter of blood is 2100 times
greater than the amount of alcohol in 1 cubic centimeter of expelled breath.
The
problem with the 2100 to 1 breath to blood partition ratio used by breath
testing instruments is that it does not take into account individual ratios,
but rather assumes that everyone has the same partition ratio. Studies have proven that individual
breath to blood partition ratios vary among individuals with a range of
approximately 1000 to 1 –to- 3000 to 1.
What is even more troubling is that the breath to blood partition ratio
varies within individuals depending upon which phase of alcohol absorption they
are in.
Studies
have shown that in the absorptive phase of alcohol digestion, the breath to
blood partition ratio is often less than the standard 2100 to 1 figure.
Therefore, if you were apply the standard 2100 to 1 breath to blood partition
ratio during this phase, it would result in a false high reading. For instance, if an individual
submitted to a chemical test that resulted in a reading of 0.10% and the
individual had a breath to blood partition ration of 1000 to 1, the actual
blood alcohol percent would be .05%.
A person who operates a motor vehicle with a blood alcohol level of .05%
is not intoxicated and cannot be charged with Driving While Intoxicated. Conversely, if a person’s breath to
blood partition ration is greater then 2100 to 1 the actual concentration of
alcohol in their blood would be underestimated if the standard breath to blood
partition ratio is used.
So
where does all of this leave us? It leaves us guessing as to a person’s true
alcohol to blood concentration. The
solution to this guessing game is a blood test. The only accurate way to
measure the concentration of alcohol in someone’s blood is to test the person’s
blood. Hospitals test blood everyday,
all day long, and the police have the ability to take and test blood as
well. In fact, the police have
special blood testing kits that come with instruction cards for drawing and
preserving blood for alcohol testing. When a person’s life, liberty and reputation are on the line,
we believe that the most accurate testing available should and must be used,
and the use of anything less is an injustice.
Filters, Bells and
Whistles
Breath
testing equipment has been utilized by police departments since the early
1970’s and has been deemed reliable for courts since that time. And yet, the science underlying the
equipment still has not been perfected. As I’ve already mentioned, the
equipment uses a presumption about an individual’s breath to blood partition
ratio, which, depending on the individual and/or the phase of alcohol
digestion, may not be accurate. In
addition to that, CMI, Inc., the manufacturer of the Intoxilyzer series of
machines utilized by the Nassau and Suffolk police departments, currently has twenty-four
(24) versions of its Intoxilyzer series listed on the New York State Breath
Testing Instrument List. Link
To NYS Breath Testing Instruments List. If the breath testing equipment is as accurate as it is
purported to be, then why do twenty-four (24) different versions of the machine
exist? Why isn’t one standard
machine used?
The
answer is simple. Breath testing
has not been perfected, and the companies that manufacture the breath testing
machines are continuously trying to discover new ways to improve them. Imagine convicting a person of the
crime of Driving While Intoxicated based on the results of the breath machine
which indicated that the person was intoxicated, only to find out that a more
accurate version of the machine was introduced a week after the person had
submitted to the test. Given the
very real reality of that situation, we cannot conceive of relying on a machine
that is constantly being replaced and updated by new and improved versions when
it comes to determining a person’s freedom.
Manufacturers of
the breath testing equipment have still not discovered ways to address the
following issues:
·
Mouth Alcohol – If a subject has undigested
alcohol in his mouth due to a burp, dentures, regurgitation or acid reflux, the
breath testing machines can be thrown off or fooled into giving a false high
reading.
·
Breath Sample Duration and Flow – If a person is
permitted or instructed to blow into the machine for too long a period of time or
with too much or too little force, the machine can be thrown off or fooled into
giving a false high reading.
·
Trace Contamination – Most breath testing
machines use infrared analysis to test for alcohol in the breath, but the infrared
wave-lengths that are used test for the methyle group, rather than for the alcohol
specific ethyl molecule. Therefore, if a person has a methyle compound in his
system, the breath-testing machine will detect alcohol even though the subject
has no alcohol in his system. This can occur when a person is exposed to
certain paints or wood stains in addition to other compounds that contain
molecules in the methyl group.
·
Sample Temperature – If a person is sick and his
breath sample is even 1 degree above 34 degrees Celsius, it will produce a reading
that is approximately 7% higher than his actual reading. Despite this fact, the
breath testing machines do not have safeguards to test the temperature of a
person’s breath sample and the police do not check a person’s temperature
before a breath test is administered.
As can be seen from the above
trusting Breath Testing Devices can result in false convictions. It is my
opinion that only a blood test will accurately indicated what a person’s true
blood alcohol content is.
This is only the first part of a
series of articles that will be published addressing deficiencies in the
prosecution of DWI cases on Long Island. Please bookmark this page and check
back periodically as updates will continue. You won’t believe how many
flaws there are in the DWI prosecutorial machine known as NY DWI.
[1] Driving while intoxicated; per se. No person shall operate a motor vehicle
while such person has .08 of one per centum or more by weight of alcohol in the
person's blood as shown by chemical analysis of such person's blood, breath,
urine or saliva, made pursuant to the provisions of section eleven hundred
ninety-four of this article.
