The Validity Of Breath Testing Rests Upon A Vast Array Of Assumptions That Can Be Attacked By An Experienced DUI Attorney In A Wide Variety Of Cases.
There are a few things that must be understood about breath testing in order to understand the signficance of the assumptions set forth below. First, a breath test measures one's breath, not their blood. Breath testing is an indirect measurement or estimation of a person's true blood alcohol level; thus the reason breath test results are expressed as BrAC versus BAC, (blood alcohol concentration). In order to make this measurement, the device is programmed to make the following assumptions:
1. THE MACHINE IS IN PROPER WORKING ORDER AND HAS BEEN PROPERLY CALIBRATED. Even if everything is in proper working condition, there can be an acceptable variation of +/- .02. If your result is a .10% that's a 20% error factor. How would you feel if the altimeter of an airplane was 20% off?
2. THE SAMPLE WAS PROPERLY OBTAINED. The law requires that you be under continuous observation for 15 minutes prior to your breath test to prevent "MOUTH ALCOHOL" If the operator of the breath machine did not have you under continuous observation for 15 minutes prior to testing, your test may be invalid. Even if you were observed, you may have medical conditions, which make you an improper candidate for breath testing. These conditions include common ailments such as heartburn and gum disease.
3. THE SAMPLE WAS OBTAINED AFTER YOU ABSORBED ALL THE ALCOHOL. Breath testing assumes that the subject is post absorptive. This is important because the machine is calibrated to multiply the breath result by 2100 to calculate your blood alcohol level. If you were still absorbing alcohol, this would tend to significantly over report your true blood levels.
4. THE TEMPERATURE OF YOUR BREATH WAS 34 DEGREES CENTIGRADE. This is an assumption that is made in every breath test in Orange County. State of the art breath testing equipment actually measures the temperature of your breath and will subtract any false high result due to elevated breath temperature. Studies done with this equipment establishes that the real average breath temperature for arrestees in DUI cases is closer to 35.5 with readings actually over 37. This alone would cause a false high of between 10-20 %
10 Common Challenges To Breath Tests
Orange County Breath Testing
Breath testing in Orange County presents a few defenses that are restricted to Orange County by virtue of the breath testing device used in Orange County. The Orange County law enforcement agencies use a breath test device called the Alco-Sensor IV-XL, a portable evidentiary breath testing device. This device, (pictured to the right), uses fuel cell technology. The device is portable, which makes it possible to to take the post-breath arrest breath test on the side of the road as opposed to at the Police Station. It also increses the chance that the breath test was administered at a time the breath test subject is submitting to a breath test. This is significant because a breath test device assumes the test subject is post absorptive. If such a person were still absorbing alcohol, this would tend to significantly over report the person's true blood level. This could mean that while the breath test indicated that you were above the legal limit when you were actually below the legal limit.
If you were arrested in Orange County and need a qualified Orange County DUI Attorney, contact the California DUI Lawyers of the Law Office of Barry T. Simons for a free, no-cost consultation and DUI case evaluation. The DUI Lawyers of the Law Office of Barry T. Simons are all Contributing Editors to the two-volume treatise: "California Drunk Driving Law", often considered the "Bible of DUI Defense by California DUI lawyers and Judges. If you are in need of quality DUI defense representation, you need to contact the Orange County DUI defense lawyers of the Law Office of Barry T. Simons today for a free, no-cost, DUI consulation and case evaluation.
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