There are two common types of tests that are used to determine alleged blood alcohol level in a Driving Under the Influence investigation: the Breath Test and the Blood Test. Both Breath and Blood Tests are subject to attack on a number of bases, ranging from operator error, to the potential for sample contamination, to the limitations of the testing methods themselves.
The Breath Test: An Overview
When it comes to the Breath Test, there are three types of machines that are commonly in use: the Preliminary Alcohol Screening Test device, the Intoxilyzer 5000 used at the station, and the Alcosensor 4-XL with point of arrest system used in the field.
Preliminary Alcohol Screening (PAS) Test
The Preliminary Alcohol Screening Test device is used by officers in the field as part of their battery of observations, evaluations, and field sobriety tests given an attempt to detect excessive blood alcohol level or intoxication. The accuracy of results from the Preliminary Alcohol Screening Test is subject to attack on a number of bases, including the officer’s failure to adequately maintain, calibrate and operate the machinery, and the limitations inherent in the machine itself, including the inability to detect mouth alcohol and interfering substances. A further defect in the Preliminary Alcohol Screening Test device is the fact that it relies on the law enforcement officer to calibrate and maintain the device, unlike both the Intoxilyzer 5000 and the Alco Sensor 4XL, which rely on a scientist to maintain and calibrate the device. This fact of reliance on an individual law enforcement officer, often operating under time constraints, involves a range of potential problems from operator error, to failure to follow specified protocols, to errors with maintenance and calibration of the device. All these potential pitfalls can be used to cast doubt on the validity of the Preliminary Alcohol Screening Test result.
The Final Breath Test: Intoxilyzer 5000 or Alco Sensor 4-XL with Point of Arrest System
For your final Breath Test, you may be given a test either on an Intoxilyzer 5000 machine at the police station or in the field on an Alco Sensor 4-XL with point of arrest system. Both machines are open to attack on a number of bases, including potential operator error and failure to follow protocols which are in place to guarantee the validity of a sample, potential sample contamination, margin for error, and the limitations of the machines themselves, including inability to detect interfering substances or mouth alcohol which may give a false reading.
Studies have shown that a wide range of substances which are volatile in a person’s blood can be falsely identified as alcohol by both the Preliminary Alcohol Screening Test device and the Alco Sensor 4-XL used in the field. Furthermore, any results that are obtained in excess of a certain range of each other should be viewed with suspicion. In order for machines to be judged “reliable” they must give results on one subject which are within a certain range of each other, specifically readings within .02% blood alcohol content. Readings that are out of keeping with that standard and or machines that offer disparate results will be seen as unreliable. Such disparate results will not be admissible in court under Title 17, a statute whose purpose is to make sure that only reliable evidence is allowed to be used against you.
At the Law Office of Jennifer Zide, we aggressively challenge the validity of your test result. We seek information as to the officer’s training and experience in dealing with these machines, his or her actual operation of the machine in question, any history of errors or problems with the particular machine used in your case, and any other information which may cast doubt on the reliability of the instruments or operators involved in evaluating your samples. We work with a forensic toxicology expert who has extensive experience in evaluating all of the issues surrounding your test results. Our expert will analyze your case and help us expose the weaknesses in the prosecution’s case. Throughout this entire process, from our initial meeting to discuss your case, to our analysis of your police report and test results, to our meetings with our expert, you will be fully included. At the Law Office of Jennifer Zide, we never lose sight of the fact that you are our client. We want you to be involved in our findings and our strategies, and to understand all the information at the heart of your defense.
Attacking the Validity of the Breath Test Result
The breath test by definition is an indirect test because it tests one substance, the breath, in order to reach a conclusion about a blood alcohol reading on another substance, the blood. It therefore “translates” a breath reading into a blood reading. The results of breath tests, unlike blood tests, are generally subject to more areas of attack because they are often used in the field and by law enforcement officers rather than by scientists operating under rigorous guidelines and in a more controlled environment.
Although these machines are designed to evaluate the level of alcohol present in a person’s blood, there are numerous problems that arise with a breath test that can be used to undermine the accuracy of your test result. For example, it is possible that a device which is unable to identify interfering substances or the presence of mouth alcohol, may be giving us a false reading either based on alcohol present in a person’s mouth rather than in his blood stream, or based on substances other than alcohol which the machine falsely identifies as alcohol. Clients who work around chemicals, gas and oil, paints, and other toxic materials which can be present in a person’s blood should be especially aware of the potential for a falsely high or inaccurate blood alcohol reading. Outside the scope of the breath test itself, there are numerous issues which can also shed light on your blood alcohol reading, ranging from your general state of health and physical characteristics, to any medications you may be taking, to drinking pattern issues that may reveal you are not actually at or above the legal limit at the time you were driving, even though test results obtained later showed an excessive blood alcohol level.
Undermining the Blood Test: Contamination, Degradation and Analyst Error
In addition to the host of issues that arise in cases of breath tests, the blood test suffers from its own potential defects. Although this is a test that is given by scientists in a more controlled environment and following more stringent guidelines, there are a number of issues which may undermine the validity of a blood test result, ranging from deterioration and contamination of the sample, to analyst error. At the Law Office of Jennifer Zide, we fully investigate those issues revolving around the preservation of your blood samples and the conclusions and interpretations made by the analyst who evaluated your sample.
We retain an experienced forensic toxicology expert to fully evaluate all of the issues involved in obtaining and analyzing your sample, whether it be breath or blood, and to get to the root of whether the test result is really a valid indicator of blood alcohol level at time of driving. With the help of our expert, the defense will target and expose any issues that could have undermined the accuracy of the test result obtained in your case.
Understanding Drinking Pattern: Is the Test Result a True Measurement of Blood Alcohol Level at Time of Driving?
Drinking pattern becomes especially important where there is a gap in time between the actual driving and when the sample is obtained. The crux of a DUI case is whether at the time of driving the subject is driving with a blood alcohol level of .08 or greater, or driving under the influence so that his ability to drive is actually impaired. Depending on the various factors in a person’s case, including factors such as gender, age, food consumption, any medications or other substances in the person’s system, any drinking pattern, and when the subject was last drinking, it is possible that the blood alcohol reading obtained may not be an accurate reflection of the person’s actual blood alcohol level at the time of driving. When it comes to an investigation of the subject’s actual drinking pattern, factors such as how much the subject had to drink, over what time period, when the subject started drinking, and when the subject had his or her last drink, are all important pieces of the puzzle in evaluating whether the test result obtained is a true reflection of the person’s actual blood alcohol level at the pivotal time, the time of driving.
Beer, Wine, and Blood Alcohol Level: General Guidelines
The following information is intended to give you a general idea of what a person’s blood alcohol level might be given a certain body weight and amount of alcohol consumed. It should be noted that factors such as gender, food consumption, medications and medical issues, physical characteristics and drinking pattern, among others, may also affect blood alcohol level. Therefore, this information should not be viewed as definitive or as a complete analysis of the unique facts of your case. We do provide it, however, in an effort to include all information that you may find useful and informative in your case.
As a general rule a person ranging from 100 to 130 pounds will have a blood alcohol level that is in excess of the legal limit with only two six ounce glasses of wine. A person ranging from 140 to 160 pounds will be very close to the legal limit with only two six ounce glasses of wine. As a general rule, a person ranging from 150 to 200 pounds, will have a blood alcohol level that is in excess of the legal limit at 3 drinks. These results generally assume consumption of alcohol on an empty stomach and may be affected by a number of factors. The results for wine also vary from the results for beer. When considering twelve ounce bottles of regular beer, a person ranging in weight from 100 to 130 pounds will be either over the legal limit or very close to the legal limit with only consumption of two 12 ounce beers. A person ranging in weight from 140 pounds to 180 pounds will have a blood alcohol level that is either in excess of or very close to the legal limit with the consumption of three 12 ounce beers. A person ranging in weight from 190 pounds to 250 pounds will likely have to consume approximately four 12 ounce beers before having a blood alcohol level that is either in excess of or very close to the legal limit. As with wine, these results assume consumption on an empty stomach and may be affected by a number of other factors.
How We Work For You
As you embark on this journey, it is important to have an attorney by your side who will take the time to fully discuss and analyze your case with you. At the Law Office of Jennifer Zide, we are dedicated to exploring all the possible issues, from deficiencies in the machines themselves, to operator error, to the many issues that undermine the validity of both the breath and blood tests. To make sure that you get the best defense possible and have all the information you need to make the decision that is right for you, we also offer the analysis of an expert forensic toxicologist. You will always share in the process as our expert works with us to identify and evaluate all the issues surrounding your test results. Contact us today for your free initial consultation at (805) 477-0327. We are always available to discuss your case with you, free of charge.
