12/26/05
Breathalyzer use takes another hit


VENICE -- Another battle in the war to have breathalyzer test results excluded in DUI cases has been won, but more shots will be fired.

A three-judge panel ruled late last week that if the state wants to use breathalyzer results, prosecutors cannot just say what the result is. The state must prove it by bringing in scientists to examine and attest to the software. Breathalyzer manufacturers have so far defied court orders to reveal source codes.

"We were hoping for a slam dunk and instead we got a jump ball," Venice attorney Robert Harrison said. "(The court order) keeps us on the same road to keep breath tests excluded."

In other words, Harrison said, the state can still use breathalyzer results, but as a practical matter, it is going to be tough sledding.

"The court said basically the state can only use breathalyzer results if they lay a foundation, which for all intents and purposes is impossible," Harrison said. "They would have to testify that this software is reliable but they cannot show the computer is reliable without it."

Harrison said he is happy with the court's ruling. However, he said if he would have gotten the ruling he had hoped for, "the show would have been over instead of leaving more work to be done."

Even if breathalyzer results were prohibited in court, that does not mean everybody who took one and is charged with DUI is home free, Harrison said.

In every case involving a breath (or blood) test, the officer has to first believe the person was impaired.

Indeed, a police officer has numerous ways of determining probable cause to arrest an impaired driver exclusive of a breath test.

Among the ways are:

* in-car video cameras recording erratic driving

* field sobriety tests

* eye tests

* speech and behavior patterns

* the smell of alcohol on a person

* open containers in the vehicle

All of the above may be assessed at the scene and considered in a suspected DUI case. An officer making a DUI stop records the results of field sobriety tests and his impressions on special forms.

Breath and blood tests merely confirm an officer's suspicion that a person is impaired.

Harrison said he has about 35 clients who fall into that category. However, other attorneys representing scores of other clients have also joined in the legal challenge to the test results.

Earlier this month, a Sarasota County court tribunal ordered the state to turn over all information about the Intoxilyzer 5000 breathalyzer to attorneys challenging the machine's accuracy.

That includes the manufacturer's "trade secret" source code, in the software that runs the machine.

The Florida breathalyzer case ignited a worldwide debate on the proprietary nature of source codes.

In the be careful what you wish for catagory.  I have never seen an officer decide to arrest a DUI suspect based on a "breathalizer" result who he was not already planning to arrest. I have seen plenty of people let go though following a breath test when the test showed he was under an .08% BAC.  If the police stop using portable breath tests i suspect DUI arrests will go up with more .06-07 drunks going to jail.

I'm all for getting rid of the damn things.  They only came about because of lawyers in the first place.

the only test should be a videotaped field sobriety test which involves the driver walking a straight line, answering some questions which require complex thought, etc.  breathylizer tests are inherently flawed b/c different people handle their booze better than others and would be more sober and coherent at 0.10 than another person would be at 0.06, etc.

I'll drink to that

Quoted: the only test should be a videotaped field sobriety test which involves the driver walking a straight line, answering some questions which require complex thought, etc.  breathylizer tests are inherently flawed b/c different people handle their booze better than others and would be more sober and coherent at 0.10 than another person would be at 0.06, etc.

You mean like taking 40% of the muzzle-velocity of an M-16 and dividing it by the total number of each animal Moses brought with him on the ark?

Quoted: the only test should be a videotaped field sobriety test which involves the driver walking a straight line, answering some questions which require complex thought, etc.  breathylizer tests are inherently flawed b/c different people handle their booze better than others and would be more sober and coherent at 0.10 than another person would be at 0.06, etc.

Problem:  The law (at least those I'm familiar with) defines DWI/DUI offenses based on BAC.

The "Breathalyzer" is a piece of antiquated 1950s technology that has been replaced by more modern breath analysis machines.

Quoted: Quoted: the only test should be a videotaped field sobriety test which involves the driver walking a straight line, answering some questions which require complex thought, etc.  breathylizer tests are inherently flawed b/c different people handle their booze better than others and would be more sober and coherent at 0.10 than another person would be at 0.06, etc. You mean like taking 40% of the muzzle-velocity of an M-16 and dividing it by the total number of each animal Moses brought with him on the ark?

600?

Quoted: Quoted: Quoted: the only test should be a videotaped field sobriety test which involves the driver walking a straight line, answering some questions which require complex thought, etc.  breathylizer tests are inherently flawed b/c different people handle their booze better than others and would be more sober and coherent at 0.10 than another person would be at 0.06, etc. You mean like taking 40% of the muzzle-velocity of an M-16 and dividing it by the total number of each animal Moses brought with him on the ark? 600?

I'm all for stiffer enforcement of reckless driving laws and removing the conditional crap attached like DUI/DWI, cellphones, etc.

Personally, I could care less what a reckless driver has done prior to driving reckless, it's the reckless part that disturbs me.

Why doesn't someone just make a breathalyzer using open-source code? Seriously, yeah people can steal your code (which really can't be that complicated in the first place) but if Law Enforcement is convinced that your breathalyzer results mean more in court than someone elses, you get to sell more of them.

Practical, field expedient, blood testing and get it over with. How that blood is drawn will be left to the officers discretion.

The most simple way to get to the root of the problem is blood testing.  If someone fails the SFST tests then it's off to the hospital for a vial of blood.

This will be good news for a buddy of mine facing his 2nd offence. Dumbass.

Quoted: The most simple way to get to the root of the problem is blood testing.  If someone fails the SFST tests then it's off to the hospital for a vial of blood.

depending on how far away the hospital is, they could be sobered up quite a bit by the time they get there.

BAC is rediculous anyway. Some people can be perfectly fine to operate a vehicle at a .2, while others may be completely drunk at .08

DUI's should be based on reckless driving, field sobriety tests/questions, etc

Quoted: Quoted: Quoted: the only test should be a videotaped field sobriety test which involves the driver walking a straight line, answering some questions which require complex thought, etc.  breathylizer tests are inherently flawed b/c different people handle their booze better than others and would be more sober and coherent at 0.10 than another person would be at 0.06, etc. You mean like taking 40% of the muzzle-velocity of an M-16 and dividing it by the total number of each animal Moses brought with him on the ark? 600?

Say bye-bye to your ruck sack.

Kharn

Quoted: Quoted: Quoted: Quoted: the only test should be a videotaped field sobriety test which involves the driver walking a straight line, answering some questions which require complex thought, etc.  breathylizer tests are inherently flawed b/c different people handle their booze better than others and would be more sober and coherent at 0.10 than another person would be at 0.06, etc. You mean like taking 40% of the muzzle-velocity of an M-16 and dividing it by the total number of each animal Moses brought with him on the ark? 600? Say bye-bye to your ruck sack. Kharn

Haha!  Someone finally got it!

Quoted: The most simple way to get to the root of the problem is blood testing.  If someone fails the SFST tests then it's off to the hospital for a vial of blood.

+1

We never use our machine.

Quoted: Quoted: The most simple way to get to the root of the problem is blood testing.  If someone fails the SFST tests then it's off to the hospital for a vial of blood. depending on how far away the hospital is, they could be sobered up quite a bit by the time they get there.

With two blood tests some time apart, you can calculate the BAC for an earlier time.

I don't know how constant the BAC decline rate is, it may be legally possible to extrapolate the BAC at the time of the initial stop based on a single blood test some reasonable time later.

Jim

I'd rather have the machine despite the flaws. It is a uniform standard. I don't like the idea of cops making the call based on subjective tests that could vary in result depending on the trooper making the stop.

Finally, somebody asked a valid question.  Which was, How is the standard derived? How is it verified and can it be proven to a scientific standard?  The guys that build this junk all go running for cover.  

Yeah, let's have police officers stick needles in drunk (or not) people's veins. F*ck that.

Quoted: Quoted: The most simple way to get to the root of the problem is blood testing.  If someone fails the SFST tests then it's off to the hospital for a vial of blood. depending on how far away the hospital is, they could be sobered up quite a bit by the time they get there.

Years ago I went to my younger brother's fraternity when they had a DUI lawyer give a presentation about how to beat DUIs. His main point was to consent to the breath test and then demand a blood test if the breath test failed. He said it was a good tactic because some departments may deny or take to long to get the blood test and it would make it easier for him to get it dismissed in court (his logic was that if one was denied a blood test the case would be dismissed and the potential time delay may bring the suspects BAC down to a legal level).  He flat out said that if they knew they were drunk they should refuse the breath test and any FST and just take the 6 month suspension(which at the time was not the same as a DUI) it may be different now.  

This was several years ago so your state laws or results may vary

I have mixed feelings on this. I have no problems with the machines, but I have a huge problem with the source code and all other aspects not being open for review by the accused. If evidence is used against you, any nformation regarding the reliability of the method used to obtain it should be open for review. Otherwise, that is just saying " we know he was drunk, and our magic machine says so..... but we won't tell you how the magic machine knows".

Quoted: Yeah, let's have police officers stick needles in drunk (or not) people's veins. F*ck that.

Don't worry, it's actually medical personnel who stick the needles in ya.

Quoted: Quoted: Quoted: The most simple way to get to the root of the problem is blood testing.  If someone fails the SFST tests then it's off to the hospital for a vial of blood. depending on how far away the hospital is, they could be sobered up quite a bit by the time they get there. Years ago I went to my younger brother's fraternity when they had a DUI lawyer give a presentation about how to beat DUIs. His main point was to consent to the breath test and then demand a blood test if the breath test failed.

In my state once you are arrested you get to chose between Breath or Blood.  If the suspect choses breath then upon sucessfull completion of the test we 1) explain that no breath sample is retained for later testing and 2) tell the suspect he may take a blood test if he wants a sample retained for his DR or lawyer to reveiw.  

no one is getting my blood, they'll lose alot of thiers first or an eye.

Quoted: no one is getting my blood, they'll lose alot of thiers first or an eye.

Big talk...ever hear of implied consent? You have a driver's license issued by the state, therefore you have implied that you will give either breath or blood if you are arrested for DWI. That is why there are penalties for not giving a sample, whether or not you are convicted.

Furthermore, if you are drunk and cause an accident where someone is either seriously injured or killed, we will be taking your blood and we don't need your consent.

Also, DWI officers are now getting search warrants for your blood in certain refusal cases.

Either way, fight all you want, we're still gonna win and get your blood.

I have heard all that kind of talk before....but guess what? When the nurse approaches with the needle they all give blood and they don't fight.

Quoted: Yeah, let's have police officers stick needles in drunk (or not) people's veins. F*ck that.

Hey, here's an idea....why don't you try to learn about what actually happens BEFORE making a stupid comment. It might be a new and novel experience for you.

A nurse or phlebotomist does the draw. There, feel better now?

Quoted: A nurse or phlebotomist does the draw. There, feel better now?

Not if he has Belonephobia.  

Quoted: Quoted: Yeah, let's have police officers stick needles in drunk (or not) people's veins. F*ck that. Hey, here's an idea....why don't you try to learn about what actually happens BEFORE making a stupid comment. It might be a new and novel experience for you. A nurse or phlebotomist does the draw. There, feel better now?

In some states they have 'certified' officers that do it.  In others, it's done by a nurse, etc.  Depends on where you are.  Sometimes it actually is a cop with some training.

yah you cant base convictions on evidence with no witness to prove its accurate, suprised it took em this long

Quoted: You mean like taking 40% of the muzzle-velocity of an M-16 and dividing it by the total number of each animal Moses brought with him on the ark?

I get a divide-by-zero error.  

Quoted: Quoted: Quoted: Yeah, let's have police officers stick needles in drunk (or not) people's veins. F*ck that. Hey, here's an idea....why don't you try to learn about what actually happens BEFORE making a stupid comment. It might be a new and novel experience for you. A nurse or phlebotomist does the draw. There, feel better now? In some states they have 'certified' officers that do it.  In others, it's done by a nurse, etc.  Depends on where you are.  Sometimes it actually is a cop with some training.

That officer will be a trained and certified phlebotomist, so therefore a phlebotomist is doing the blood draw.

Quoted: I have mixed feelings on this. I have no problems with the machines, but I have a huge problem with the source code and all other aspects not being open for review by the accused. If evidence is used against you, any nformation regarding the reliability of the method used to obtain it should be open for review. Otherwise, that is just saying " we know he was drunk, and our magic machine says so..... but we won't tell you how the magic machine knows".

The whole reason for this is that it's a correlation.  Every time the machine is used, the actual results fed to the computer will change a little, because what you are doing is measuring a chemical reaction - and it isn't 'un-done' at the end of the process.  So the older the machine is, the more potential for error.  Those correlations are a product of experiments that are (A) expensive, and (B) time consuming.  So the companies that make these machines (which aren't themselves very complicated) don't want the results of their expensive experimentation in the public domain.

The problem, of course, is that there is experimental error involved, and the defendants don't know what it is.  In reality, this is true of any type of test, but the experimental error is potentially much larger with a breathalyzer, because there are two calulations involved - one to figure out how much ethanol is in the breath, and another to translate that into how much is in the blood.  Both of those are problematic.  The first because the chemical reaction in the vessel will change with a wide variety of factors, notably time and usage.  And usage will probably not be 'number of times' but rather 'volume of air blown'.  Then there are mechanical errors in the systems - the equipment, especially the smaller units, is only so accurate, and the tolarances stack.    The second problem, of course, is that every person is different, and there will be variations in how BAC compares to the aclh. content in breath.  That one is even tougher to hammer out, it will vary with an even wider variety of factors.  An experiment to prove what it should be would have to include ethnicity, sex, weight, body fat %, and probably a whole other mess of stuff that I can't think of right now.

The problem isn't that these experiments haven't been run, it's that they aren't in the public domain.  If the companies won't reveal their data, then jury's (or usually just judges) can't be sure how accurate it really is.  Is it +/- 1%?  or 10%?  How do they know?  If they don't reveal their sources, then it's not fair to the defendant.  There are plenty of cases where a procedure or technique was initially thought to be effective, and then when the experimental procedure or statisical analysis methods used to reach that procedure were anylyzed by other experts, there was something wrong.  Whammo, +/- 1% becomes +/- 10% (or worse... it's often completely invalid)

The point is that courts are realizing that theres no way to be sure what the test really means if the methods, etc, aren't open to review.  But the companies that make breathalyzers can't afford to have that information in the public domain, because they manufacture a product where that information is really the only hard part of it.  If that info got out, they'd go out of business.  

The solution, of course, to that problem is blood tests.  Those are basically impossible to refute, because how they are analyzed IS in the public domain.  But it's tougher on PD's to do that.  Vicious cycle, really.  

A lot of PD's are doing just that, though, blood tests after a failed FS test, or failed Breathalyzer.  It's probably the wave of the future, unless more of the information is put up for peer review by Breathalyzer manufacuturers.  

All that being said, I fear field sobriety tests as I am not a very well balanced person.  Hell, I can stumble just moving around the house.

Quoted: In the be careful what you wish for catagory.  I have never seen an officer decide to arrest a DUI suspect based on a "breathalizer" result who he was not already planning to arrest. I have seen plenty of people let go though following a breath test when the test showed he was under an .08% BAC.  If the police stop using portable breath tests i suspect DUI arrests will go up with more .06-07 drunks going to jail.

+1. As a prosecutor (in the early days when DUIs were my bread and butter) I preferred refusals - where the evidence was just the officer's recollection of his observations. No nameless corporation for the defense to attack, just a cop who'd rather have gone home explaining why he extended his tour by 2 1/2 hours to take the defendant off the road.

Quoted: I have heard all that kind of talk before....but guess what? When the nurse approaches with the needle they all give blood and they don't fight.

When 8 jail deputies and two tasers show up, you'll stick your arm out for the nurse.  I explain to DUI suspects that they will be giving a breath or blood sample.  not submitting to the test is not an option.  their body is destrotying the evidence of DUI by processing the alcohol in their system, and I can seize that evidence without a warrant.  I will do whatever it takes, including having 8 or 10 people hold you down to get that blood sample.  You can sue me later or challange the admissability of the sample.  but you will be giving a sample. In close to 14 years none of my DUI arrests has not provided a blood or a breath sample.

the answer is either 650 or 620. it depends on if its ss109 or m193 ammo.

When DUI comes up  it's always interesting to try and guess which posters have had experience of DUI arrest or are in fear of same.

To those who do not drink and drive it's a safety issue.  To the others it's about their rights. Speaking in generalities of course.

Regards,
Mild Bill

Quoted: All that being said, I fear field sobriety tests as I am not a very well balanced person.  Hell, I can stumble just moving around the house.

To me the HGN is the key test, all the others either support or refute it.

When we did DWI detection, we had one test subject who was not the most gifted person when it came to balance, who had nothing to drink.

Quoted: Quoted: All that being said, I fear field sobriety tests as I am not a very well balanced person.  Hell, I can stumble just moving around the house. To me the HGN is the key test, all the others either support or refute it. When we did DWI detection, we had one test subject who was not the most gifted person when it came to balance, who had nothing to drink.

HGN as such is specifically disallowed in some jurisdictions. However, a cop can always testify that "he couldn't follow my pen smoothly with hus eyse, just as he can testify about a suspect's poor balance.

Quoted: Quoted: Quoted: All that being said, I fear field sobriety tests as I am not a very well balanced person.  Hell, I can stumble just moving around the house. To me the HGN is the key test, all the others either support or refute it. When we did DWI detection, we had one test subject who was not the most gifted person when it came to balance, who had nothing to drink. HGN as such is specifically disallowed in some jurisdictions.

In my state we can include lack of smooth pursuit and HGN to include angle of onset. However we cannot testify that X angle of onset equals Y BAC.

Quoted: Quoted: Quoted: Quoted: All that being said, I fear field sobriety tests as I am not a very well balanced person.  Hell, I can stumble just moving around the house. To me the HGN is the key test, all the others either support or refute it. When we did DWI detection, we had one test subject who was not the most gifted person when it came to balance, who had nothing to drink. HGN as such is specifically disallowed in some jurisdictions.   In my state we can include lack of smooth pursuit and HGN to include angle of onset. However we cannot testify that X angle of onset equals Y BAC.

That's the way I was taught as well.

I'm curious as to why HGN is disallowed.

Quoted: Quoted: Quoted: Quoted: All that being said, I fear field sobriety tests as I am not a very well balanced person.  Hell, I can stumble just moving around the house. To me the HGN is the key test, all the others either support or refute it. When we did DWI detection, we had one test subject who was not the most gifted person when it came to balance, who had nothing to drink. HGN as such is specifically disallowed in some jurisdictions.   In my state we can include lack of smooth pursuit and HGN to include angle of onset. However we cannot testify that X angle of onset equals Y BAC.

Bingo. IMO, that's much more persuasive ("His eyes were jerking all over the place") than is "scientific" testimony, because jurors have alll seen friends drunk & trying to focus.