Problems with Outliers in Breath Alcohol Testing

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1 Problems with Outliers in Breath Alcohol Testing Jo c h e n W ilske Blood alcohol concentration (BAC) and impairment o f driving skills are related so closely, that statutory drink-drive limits are accepted w orld-w ide. These limits are based on many years o f experience and num erous results o f investigations. Psychophysical impairments begin w ith a BAC o f 0.3 %o respectively % and increase with rising levels. To prevent any possible driving impairment, limits for prosecution should be set to values betw een 0.0 and 0.3 %o. Adm itting less rigorous regulations, critical per se levels o f offense o f 0.8 or 0.5 %o - as proposed for the area o f the EC - can be acceptable as well. Based on scientific results, corresponding decisions have to be initiated by the society and finally m ust be and are made in the political and legislative area. A variety o f countries has introduced breath alcohol determ ination by m eans o f specially developed instrum ents for quantitative evidential testing and replaces blood alcohol determ ination in various respects. Legal limits o f breath alcohol values are adjusted to the limits o f blood alcohol concentrations by conversion w ith a constant factor betw een 2000 and 2300, w ith BA C o f 0.8 resp. 0.5%o corresponding to rounded breath alcohol levels o f 0.4 resp. 0.2 mg/1. This implies an unrestricted orientation o f breath alcohol limits along BA C and on driving impairment. All the well know n and confirmed experiences w ith BA C are tacitly transferred to breath alcohol concentrations, preconditioning a mutual correlative conformity. The w ording o f the laws carefully ignores this critical relation, which cannot obscure the fact. C ontrols for D W I (driving while intoxicated) aim to prevent impaired drivers from further and repeated driving by punishment. So far, drivers have been considered to be impaired if they have show n a BAC above a certain limit. If the breath alcohol concentration shall be used for the same purpose, a com parable relationship betw een BrA C and driving ability still m ust be proved. O therw ise every statutory limit o f breath alcohol concentration w ould be arbitrary w ithout a scientifically proved relation to driving ability. Finally this means, that by maintaining the hitherto existing evaluation o f legal limits, a critical breath alcohol concentration limit can only be stated, if breath alcohol levels are in absolute agreem ent w ith the results o f corresponding blood alcohol investigations. Alcohol, Drugs and Traffic Safety - T92 Ed. by Utzelmann / Berghaus / Kroj Verlag TÜV Rheinland GmbH, Köln

2 Figure 1 illustrates the problem. There is no doubt about a close correlation betw een the am ount o f BAC and the degree o f driving impairment. Also there is no doubt that BrA C's cannot be converted into BAC by a constant factor due to considerable variations. Logically, relations betw een BrA C and driving ability must be variable also as long as an otherw ise substantiated correlation is not proved scientifically. As a result, a similar legal limit as w ith blood alcohol concentrations can not be stated by use o f breath alcohol determ inations, because only insufficient scientific results exist for this problem. Fixing such an arbitrary limit cannot prove driving im pairm ent in single cases beyond all doubt. Blood Alcohol Breath Alcohol Concentration _». Concentration (BAC) (BrAC) Driving Ability Fig. 1: The relationship between BAC, BrAC, and driving abilitiy I will neither discuss problem s o f statistical deviations betw een results o f breath alcohol and blood alcohol determ inations nor legal problem s regarding the equality or problem s concerning a second detection, the evaluation and drug influence or identity control. M y intention is, to discuss problem s, w hen breath alcohol values differ so profoundly from sim ultaneous blood alcohol concentrations, that conclusions on the driving ability m ust not be drawn. A few practical examples may illustrate this: B reath alcohol m easuring can be influenced unintentionally or on purpose. Several subjects w ere asked during a drinking experim ent, first to blow regular and afterw ards to blow following hyper- or hypoventilation. B lood alcohol concentrations w ere determ ined simultaneously. On figure 2 the results can be seen expressed as proportional deviations from the sim ultaneous BA C after hypo- and 402

3 hyperventilation. W e could see in other drinking experim ents maximum deviations caused by hypoventilation reaching up to plus 32 % com pared to regular blowing, after hyperventilation decreased values until minus 24 % resulted. By successive hypo- and hyperventilation, one subject was able to obtain a minimum breath alcohol value less than 50 % o f his maximum value. Deviation from BAC H ypoventilatio n H yperventilation BAC (g/kg) BAC (g/kg) BAC Alcomat BAC Alcomat <e> - - e Fig. 2: Relative deviations o f BrAC caused by hypo- and hyperventilation, com pared to BAC (= 100%) While different breathing techniques obviously account for the deviations in these experim ents, the follow ing cases have to be evaluated com pletely different. Riding his m otor-bike, a w ell-know n male alcoholic got into a road-survey control. Surprisingly for the policemen, the breath alcohol test show ed a value o f only 0.2 % o. A subsequent test tw o m inutes later am ounted to 0.3 %o. M istrusting the result in view o f the know n alcoholism, the police ordered a blood sample, w hich was taken 30 minutes later and gave a result o f 2.66 %o. These circum stances w ere only revealed, because the accused announced the results o f the breath alcohol determ inations in court, confirm ed by the policemen in all points. The files didn't contain any hint on the breath alcohol test, because the policem en didn't record these results in view o f the discrepancy w ith the blood alcohol determ ination. 403

4 Munich: Result* B ra C g/kg BrA C g/kg BA C g/kg * BrA C-results expressed as BAC-equivalents (factor 2.100) In another case from Freiburg, the breath alcohol test w as carried out one hour after the end o f drinking with a result o f 0.84 %o. 19 m inutes later, a blood sample w as taken with a BAC o f 1.93 %o, which in fact means, that the BAC w as m ore than 1.0 %o higher than the corresponding breath alcohol level. In court, the police officers said that during the same night in another four cases the same instrum ent they had used for controls had shown deviations am ounting to 0.4 to 0.5 %o instead o f deviations up to 0.2 %o normally com pared to the blood alcohol determ inations. All this happened despite the fact, that the instrum ent w as serviced according to instructions and the course o f the breath alcohol test w as regular. Freiburg: R esult BrA C BA C * BrAC-results expressed as BAC-equivalents (factor 2.100) Obviously even regularly serviced alcoholm eters show misfunctions which cannot be recognised by the operators. D uring a drinking test w ith junior lawyers, the applied AJcomat showed only values betw een 0.0 and 0.1 % o although the test persons had already consum ed considerable am ounts o f alcoholic beverages. This Alcom at unit was m ade available by the local police authorities and w as said to be serviced regularly. After even the police officers couldn't believe the produced values any longer, they replaced the A lcom at by another unit and got expected values. In another case the police made available tw o Alcom ats which had been serviced and validated only 10 w eeks before. W ithout any hint to m isfunctions all results o f the m easurem ents carried out on both units with the same test persons at the same tim e w ere 0.2 to 0.3 %o higher on one A lcom at com pared to the other one. So far, all these cases show ed a low er breath alcohol concentration com pared to 404

5 the corresponding BAC. B ut differences could be equally observed the other way round, which means, the breath alcohol concentrations w ere considerably higher than corresponding BAC's. A car driver in the area o f Vienna ran into a traffic control and w as requested to perform a breath alcohol test. The first result w as 1.66 %o and the second m easurem ent 2 minutes later gave 1.88 %o. The man refused to accept these results and contacted his brother - a police surgeon - who collected a blood sample 90 minutes after the breath alcohol test. The result o f the blood alcohol determ ination carried out on this sample was 0.0 %o. A t first, a m istake during the blood alcohol determ ination w as considered, but a control analysis confirm ed the result. So the suspicion w as casted on the police surgeon, that he had interchanged the blood sample in favour o f his brother, but a serological investigation confirm ed the identity o f the blood sample. Vienna: Result* BrA C g/kg B ra C g/kg BAC g/kg * BrA C-resulls expressed as BAC-equivalents (factor 2.100) A similar case could be observed in Innsbruck: Tw o consecutive breath alcohol determ inations w ith a tim e interval o f 5 minutes show ed results o f %o. Blood alcohol analysis o f a blood sample o f the same person draw n one hour later on request o f the defendant show ed a result o f only 0.45 %o. Innsbruck: Result* B ra C g/kg B ra C g/kg BAC g/kg * BrA C-results expressed as BAC-equivalents (factor There are num erous similar cases. At present however, w e are not able to answ er the question how frequent similar false results during breath alcohol testing may be observed. Presum ably not the last reason for this fact is, that not all these cases 405

6 becom e know n to the public, because results o f breath alcohol tests which differ considerably from the corresponding BAC's are obviously rejected prem aturely to som e extent. It could be argued that these are only single cases occurring very rarely. This is quite right, but it doesn't help the person who is put in the w rong. A ccording to the principle in criminal law: 'in dubio pro reo' an offensed person could ask on the other hand in the case o f a single breath alcohol determ ination, if this could be a blatant m ism easurem ent - at least in view o f values near legal limits. The presented examples show that such mism easurem ents are possible and can't be recognised by the operators. W ithout confirm ation by another m ethod, a m ism easurem ent can never be excluded in the single case. The reasons for blatant discrepancies betw een breath and blood alcohol results can only be guessed or speculated upon retrospectively. A correct identification o f the, causes cannot be successful especially because the breath alcohol determ ination is unique contrary to the blood alcohol determ ination and there is no reference sample for a second investigation. E ven the sampling yields no reproducible specimen so a subsequent reconstruction is not possible. Possible reasons for a breath alcohol value different from the corresponding BA C are: - cross sensitivity - tem perature changes in exhaled air - changed and irregular breathing techniques - diseases mainly in the respiratory and circulatory system - secondary contam ination with alcohol (adherent m outh alcohol, regurgitation, or belching) - hard-w are susceptibility with either false determ ination or reading o f the BrAC. Recently,.instrum ents are announced which are said to be able to avoid or at least decrease som e o f the cited possibilities o f m ism easurem ents. Such instrum ents have not been m ade available so far. Therefore it cannot be judged to w hat extent they fulfill the expectations. A t least the elimination o f som e o f the possible sources o f errors hardly seems to be possible. Considering the present state o f the art o f available devices for breath alcohol m easurem ents, blatant m ism easurem ents cannot be excluded w ith the required certainty. This means, that especially the criminal prosecution o f a drunken driver can lead to considerable evidential difficulties if no other signs o f im pairm ent have been recognisable. The perception and classification o f signs o f alcohol influence largely depends on subjective evaluations o f w itnesses and therefore is rather uncertain. A lthough the breath alcohol determ ination guarantees the physical intactness o f a person, it can impair the evidence for the prosecution on the other hand. Additionally it may happen, that the possibilities to w ithdraw prosecution will becom e widely know n very soon. By legally defining breath alcohol limits, 406

7 w ithdraw ing prosecution possibly can be avoided, but in this case it has to be taken into account, that road users may be put into the w rong. Present and available m ethods o f breath alcohol determ ination cannot solve this dilemma. W hether this will be possible by future devices and m ethods seems questionable from the present point o f view. 407

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