Many factors can skew breath test results, making an innocent person appear guilty of DUI. The person’s breath sample may have been collected under subpar conditions. The test administrator could make a mistake, regardless of their experience or skill level. The unique condition of the suspect, including size, body temperature, medications ingested, and diet could interfere with testing. A Georgia DUI attorney could argue that a breath test result of .08 was inaccurate or completely invalid.
The truth is that a number of variables can contaminate a breath sample, potentially resulting in a false positive. The most common is residual mouth alcohol. This can present a problem with handheld breathalyzer tests and also for ignition interlock devices installed in vehicles after conviction. Oral products, like mouthwash, cough syrup, and breath spray have a history of distorting breathalyzer test results. It has been proven that alcohol will remain in the mouth of a person after they use one of these products. If you used one of these products before being tested an arrested for DUI, contact a Georgia DUI attorney.
A breath sample collected after the use of mouthwash, cough syrup, or breath spray will result in a higher blood alcohol reading than the person’s actual blood alcohol content. Chewing gum is another product that can retain alcohol in the mouth. Officers are required to instruct all test subjects to dispose of their gum, if they happen to be chewing any. Certain inhaled asthma medications contain alcohol. It is imperative that a BAC reading reveals the accurate blood alcohol content of a suspect, without being affected by residual mouth alcohol. If this is not the case, the test results may be invalid and your Georgia DUI attorney can fight to have them thrown out.
In addition to asthma inhalers containing albuterol, salmeterol, and budesonide, other medications and even certain medical conditions themselves can affect breathalyzer test results. Scientific data has shown that the acetone levels of people with diabetes are hundreds to thousands of times higher than non-diabetics. Breathalyzer machines detect ethyl alcohol in the breath to determine blood alcohol content. However, these machines cannot tell the difference between acetone and ethyl alcohol. Any condition that can create high acetone levels can lead to an artificially high breathalyzer test result. Gastroesophageal reflux disease, known as GERD, puts sufferers at high risk for a false positive breath test result. The medical condition causes undigested material, which includes alcohol, to leak back up into the esophagus.
Diet, in general, can be a contributor to inaccurate breath test results. Research has revealed that high fat, low carb diets, such as the popular Ketogenic diet, can increase the acetone levels in a suspect’s breath. Even a person’s profession, if it happens to include regular exposure to acetone, can potentially interfere with breath test results. This is particular common among individuals who work as fulltime painters. If you suspect that you have been the victim of a faulty breath test, contact an experienced Georgia DUI attorney immediately.
What you need to know about the 2 types of Georgia DUI Breath Tests.
Most people don’t know that there are actually two different DUI breath tests that police will have you complete when you are being investigated for DUI. Police have been using breath tests to secure DUI convictions for the last few decades. Why shouldn’t they? They’re cost effective, easy, inexpensive, and less intrusive than other means of proving a driver’s blood alcohol content. However, there are problems with the testing machines themselves and the results of the tests.
“Roadside” DUI breath test
Georgia police officers use the Alco-sensor to conduct roadside breath tests. This little machine is so inaccurate that the specific readout isn’t even allowed as evidence against you at a trial. That’s right, police can’t use the device to reliably test your alcohol level. So what’s the point of forcing people to blow into the Alco-sensor? Well, police can use it to form probable cause to arrest you. I previously wrote a post about probable cause here. It is also used to show that there was alcohol in your system.
“State administered” DUI breath test
Most counties in Georgia have started to use the recently developed Intoxilyzer 9000. There may still be a few counties that are still using the older Intoxilyzer 5000. This is the breath test that you are given at the police station or jail. There are also reliability issues with this machine.
First, the machine uses the same level of hardware technology that was used in the Atari video game system. Think about that. It is now 2015 and the State of Georgia is relying on technology that was developed in the late 1970s to prove that someone is over the legal driving limit of 0.08%.
Second, the margin of error that the manufacturer admits exists is +/- 0.005% that means that if you blew a 0.08% your BAC is actually as high as 0.085% or as low as 0.075%. This is the difference between a conviction or a not guilty verdict.
Third, the device manufacturer hasn’t and will not disclose how exactly the machine works. The simplest explanation of the technology is that a light is beamed through the breath sample chamber. The alcohol molecules are absorbed. A detector at the other end of the chamber measures how much light is left. Then a computer calculates the amount of alcohol percentage is in the breath sample.
They say the machine “accurately” determines a person’s blood alcohol content. That may be the case. But there hasn’t been any independent verification that the machine actually does what it says it does. It could just be spitting out a random number.
Fourth, there are several factors that may impact the reliability of the breath test to return an accurate description of your BAC. If you are diabetic or hypoglycemic, have GERD, just burped, threw up, are over 65, your body temperature is above or below normal, have dentures or other dental work, or had a recent head injury the results will likely be off.
If you were arrested for a DUI based on a breath test, contact Block Law at (770) 824-3030 for a free DUI case consultation today!
DUI Breath Test Defenses
If you are accused of DUI and blew over 0.08% there are several things your DUI attorney needs to investigate as potential defenses.
First, your attorney needs to know your medical history to see if there are any possible medical explanations for your test result. This may show the DA, Judge, or Jury that the result shouldn’t be trusted or that it should be thrown out entirely.
Second, your attorney needs to know the circumstances surrounding your arrest and the test itself. The Intoxilyzer 9000 manufacturer has very specific guidelines on how the machine is tested, maintained, and repaired. If the guidelines aren’t followed the test may not be valid. Your attorney may be able to keep it out of your trial.
Third, if you burped or vomited and subsequently took the test the results may be significantly higher due to mouth alcohol. The officer administering the test is supposed to monitor you for 20 minutes prior to the test to make sure you haven’t burped or vomited too shortly before the test to eliminate mouth alcohol. If the testing procedures aren’t followed, then your attorney may be able to have the result excluded from evidence.
You don’t have to take a breath test
In Georgia there is an implied consent law. This means that by driving on the roads in Georgia you are “consenting” to a breath or blood test. You don’t actually have to take the test but if you don’t your driver’s license may be suspended for up to a year. You have 10 days from the day you are arrested to request an Administrative License Suspension (ALS) hearing to challenge that license suspension. I wrote about ALS hearings here.
So what does all this mean?
In my experience, DUI cases can be fought and won. You need to hire a DUI attorney shortly after your arrest to make sure that attorney has enough time to protect your driver’s license and to fully investigate your case. If you were arrested for DUI in Georgia contact Block Law today at (770) 824-3030 today for a free case consultation!
If you decide to take a breath test you should always ask for a blood test too. Here is why.
Below is an entertaining video from a Myth Busters episode debunking many popular ways to “beat” a DUI breath test.