Beating the Breath Test Increase your Knowledge and Increase Your Wins. Caesars Palace Hotel Las Vegas, NV

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1 Beating the Breath Test Increase your Knowledge and Increase Your Wins Caesars Palace Hotel Las Vegas, NV

2 Breath test cases can be WON!!! CSI Effect Jurors love science The defenses are based in science and common sense

3 Education Working knowledge of alcohol and the body Understanding of how the machine works In many cases the prosecution won t Educate the judges and jurors with experts

4 Defenses All defenses to the breath test reading are based upon science Either the science of the body Or the science of the machine

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6 Henry s s Law If a gas and a liquid are in a stoppered container at a constant temperature, a substance in the liquid will evaporate into the gas until the liquid and the gas reach equilibrium The concentration of the substance is different in the gas versus the liquid If you know what the proportion is, then by measuring one you can determine the other

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9 The Breath Machine Law of Absorbtion Beer-Lambert Law The BEER-LAMBERT LAW states: For a defined path length (the sample chamber), containing an absorbing system (concentration of ethanol molecules), the transmitted energy (IR energy) will proportionally decrease with the increase in concentration of the absorbing system.

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12 Disconnect Cases The test has to be wrong because it does not match the physical evidence Success is bred by facts that suggest error Minimal operation problems A passed FST A good video

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14 Potential Defenses Body temperature Exhale Pressure Retrograde Extrapolation Non Specificity Mouth Alcohol GERD Partition Ratio Linearity

15 Body Temperature Constant temperature Deep lung air is 37 C C or 98.6 F It cools to 34 C C as is exits the body The machine heats to 34 C in an attempt to maintain a constant temperature Variations cause problems Alabama requires a temperature adjustment

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17 Body Temperature Warmer air holds more moisture Alcohol goes to the water Hold your breath (20 seconds) warmer more alcohol in the sample - 16% higher (Dr. Michael P. Hlastala, Ph.D.) Hyperventilate (20 seconds) colder less alcohol in the sample - 11% lower (Dr. Michael P. Hlastala, Ph.D.)

18 Exhale Pressure How you blow makes a difference Dr. Michael P. Hlastala, Ph.D. The greater the pressure of the expelled air the higher the reading You are blowing air into a chamber that has an exit tube

19 Retrograde Extrapolation Your client is pulled over at midnight and blows 1:15 AM If you are defending in a time of driving state how does the government prove that the client was.08 or above at midnight OR how do you show that he was under.08 at midnight

20 Retrograde Extrapolation You cannot get an accurate Retrograde Extrapolation # unless you have both dose amounts and times and eating history. Even with that information you can only get a range because absorption and elimination rates are different for everyone

21 Retrograde Extrapolation If the government is attempting RE, quote Dr. Dubowski It is unusual for enough reliable information to be available in a given case to permit a meaningful and fair value to be obtained by retrograde extrapolation or A.W. Jones A dubious practice

22 Retrograde Extrapolation Factors Time of consumption before, during or after driving Rate of consumption Type of drink Time from ingestion to absorption 14 to 138 minutes (10x faster) Dubowski Neat whisky on an empty stomach 23% took longer than 45 minutes A.W. Jones

23 Retrograde Extrapolation Factors What causes delay drink mixers food Why? The stomach does not empty through the pyloric valve until the contents are digested So what? This process can flatten the alcohol curve because in effect you are drinking over a longer period of time

24 Retrograde Extrapolation Elimination Rates vast majority of people eliminate at a rate of.01% -.025% per hour

25 Retrograde Extrapolation The government has to guess: when they started drinking The pace they were drinking When they stopped drinking Their absorption rate How food or mixers effected the rate When they peaked What the elimination rate was If you have all of these then it s s possible to get a range

26 Braces Bleeding gums injury Blood in Mouth

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30 Non - Specificity Breath machines including the Intoxilyzer and the Draeger Alcotest 7110 MK III are non-specific for alcohol Different machines have different filters Old 3.5 µm m / New 9.5 µm

31 Non - Specificity The purpose of using 9.5 µm m region of the spectrum is that the absorbance at that level is of the carbon oxygen bond due to the carbon- oxygen/hydrogen stretching motion of primary alcohols (ethanol is a primary alcohol). The theory being that many of the additional absorbing compounds that plagued the Intoxilyzer and the Datamaster were not detected at the 9.5 µm m wavelength.

32 Non - Specificity As it is the carbon oxygen bond and not the compound itself being identified during the breath test, substances other that alcohol which contain a carbon oxygen bond are identified as ethanol by the machine. This results in a false positive reading.

33 Non - Specificity Despite the promotion of the machine as immune to interferents at the 9.5 µm m level, testing by the State of Alabama Department of Forensic Sciences revealed that two common interferents at the µm m range, n-butanol and toluene, also print analytical results. The n- butanol printed analytical results at all concentrations and the toluene printed results at lower levels and invalid test interference at the higher level.

34 Alcohol Molecules

35 Alcohol Molecules

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40 GERD Mixing of stomach gas with lung air Basic example is burping Purpose for the observation period Different Partition ratio than air blood

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42 Partition ratio Machine tests the amount of alcohol in breath and converts that number to an estimate of what the BAC should be Completely based on the Assumption that there is proportion is 2100:1 The proportion can be as low as 1700:1 and as high as 3200:1 Average height of a male is How many men are 5 11? The lower the ratio the more falsely high the reading is

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45 Non Specificity and Partition ratio Ethylene 14:1 Nitrous Oxide.468:1 Toluene 5.5:1 Diethyl Ether 15.2:1 Acetonitrile 578:1 Isopropanol 1671:1 Acetone 75:1

46 Linearity Purpose of the simulator Assume it only tests at.15% At the time of the test we only know how it is evaluating a.15 sample of air from the simulator The solution is actually a higher # that when heated to 34 C produces.15 in the air above it No idea if the machine is working properly to evaluate

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49 The diagrams used in this presentation are the of Phillip B. Price, Price Law Firm, Huntsville AL