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Chemical Breath Test at a DMV Administrative Per Se/DUI Hearing

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What is a Chemical Breath Test?

The most frequently presented source of scientific evidence at a DMV Administrative Per Se (APS) hearing is the results documented when a driver blows into a breath device. Once a driver has been arrested, the law enforcement officer should advise the driver of the “Implied Consent” law and allow the driver to choose between a blood or breath test (urinalysis is universally not offered except in certain instances). Many drivers have a fear of needles or do not trust the sanitary conditions under which their blood will be drawn; therefore, they opt to provide a breath sample.

Increasingly, California Law Enforcement Agencies are adopting the use of Evidential Preliminary Alcohol Screening (EPAS) devices; or Portable Evidential Breath Test (PEBT) devices as a means to obtain a breath sample from a driver close to the time of driving. Because these portable breath devices can be carried by law enforcement officers in the field, there is no need to drive the arrestee to a secondary location before the evidential air samples are collected.

The EPAS device is a small, hand-held, device that may be administered at the scene of the arrest, at a police substation, or a County Jail. EPAS devices can serve the dual functions of a “Preliminary Alcohol Screening (PAS) test and a evidential chemical breath test. In the PAS setting, the device is used prior to an arrest and is part of the officer’s field sobriety testing routine. With the flip of a switch, the device can be switched to the evidential setting to be used after the arrest.

The PEBT is intended exclusively for use “after-arrest” to collect evidentiary air samples.

Just like the classic “breathalyzer” in use at many police stations, the EPAS and the PEBT devices have the capability to print out a small slip of paper (similar to a cash register receipt) which documents the blood/alcohol concentration and other required information.

If the individual law enforcement officer is not equipped with a portable breath device, the driver will be transported to a police station or county jail where they will be introduced to a larger, bench-mounted, device into which they will be directed to blow. These larger devices are becoming a thing of the past but are still being used in many jurisdictions.

The term “Chemical Breath Test” is often confusing to drivers. The term simply refers to a breath test that has the ability to estimate the chemical blood/alcohol concentration on a person’s exhaled breath.

Are Chemical Breath Tests Accurate?

One of the most disturbing elements of California DUI Law is blind belief that all people are impaired by alcohol in the same way and at the same level. There is an assumption that all drivers are average and that all drivers are legally impaired by a blood/alcohol concentration of .08% or greater.

When focusing specifically upon chemical breath analysis, the weaknesses in these presumptions are amplified. Quite simply a breath device (whether it is an EPAS, a PEBT or a bench-mounted model), will determine every test subject as being identically average. The machine will not factor in variables such as age, body weight, body mass index, lung volume or metabolic rate. A person’s sex, body temperature and tolerance are all ignored by breath testing devices.

To establish the correlation between alcohol present in the blood and alcohol present on the exhaled breath, a breath machine will assume a ratio of 2100 to 1. The presumption is that 2,100 milliliters of breath will contain the same amount of alcohol as that contained in 1 milliliter of blood. Assuming that this ratio is applicable to the “average” person, and since the machine sees every test subject as “average,” it applies the same computation of alcohol concentration whether a person weighs 130 lbs. or 250 lbs. Because the machine is blind to the variables in an individual’s physiology, the readings can be wildly inaccurate.

Even more startling is the fact that breath machines DO NOT detect Ethanol (ETOH), the active compound in alcoholic beverages. Breath machines will identify ANY methyl based chemical on the breath as ETOH, run a calculation on the “average” person and multiply that reading 2100 times. Thus, the machine identifies that there is a “chemical” on the breath, assumes it is alcohol, and computes a reading.

Methyl based chemicals occur naturally in the human body. Those persons suffering with diabetes may have an elevated level of acetone on the breath. Those persons practicing low carbohydrate diets may experience elevated levels of ketone on their breath. A painter who is continually exposed to paint fumes may have elevated levels of toluene in his blood stream. A mechanic who washes automobile parts in acetone may have that chemical absorbed directly through the skin into the blood stream. Because there is no “specificity” the breath machine will assume all of these substances are alcohol and create erroneous readings based upon its assumptions.

Based on this, a painting contractor could be on his way home from a hard day at work; be pulled over because his brake lights are not working and lose his privilege to drive because a DMV Hearing Officer believes that a breath machine correctly measured the presence of alcohol on the driver’s breath; even though he had not had one drop to drink.

Breath machines are also subject to other forms of corruption. A driver with a history of Gastro Esophageal Reflux Disease, also known as GERD, can easily corrupt an air sample. Stomach vapors mixing with exhaled air from the lungs can cause the breath machine to read extraordinarily high. Drivers who have certain types of dental work in their mouth or who have a pierced tongue, can trap alcohol in their mouth which, when blown into the breath machine, can read high. Drivers suffering with asthma can have great difficulty putting enough air into a breath machine and can cause “spikes” in readings because they are blowing so hard that they are virtually spitting into a breath device to complet the test. Also, a possible consequence of alcohol consumption is that a driver may become ill and regurgitate or vomit. If this occurs within close proximity to the time of a breath sample, a result can be corrupted.

For a chemical breath sample to be presumed “reliable” there are a certain set of “building blocks” that must be in place. Known as Title 17 regulations, these steps include:

  1. The testing officer must be certified in the use of the breath machine.
  2. The breath machine must be regularly serviced and calibrated.
  3. The testing officer must conduct a “continuous” observation of the driver for a period of 15 minutes, prior to the breath test, to insure the driver did not burp, regurgitate or vomit.
  4. The driver must successfully provide two separate readings that are within .02 of one another.
  5. The breath sample must be taken within 3 hours of the termination of driving.
  6. The officer must change the mouthpiece on the device between each consecutive blow to prevent the accumulation of alcohol in one mouthpiece.

Because chemical breath devices do not specifically identify Ethanol; because machines are machines that are subject to malfunctions and inherent error, and because breath samples are subject to a variety of corruption, a good DMV Defense Expert will look at every sample with great suspicion. The fact is chemical breath testing may not always be accurate.

How do we fight the Chemical Breath Test?

Since the DMV will largely predicate the suspension of a driver license based upon the results of a chemical breath test; the driver’s DMV Defense Expert should conduct a thorough examination and investigation of all methods, steps, and policies employed in the collection of an air sample.

Your DMV Defense Expert from California Drivers Advocates (CDA) will carefully evaluate all this information and thoroughly investigate the means by which your chemical breath samples were collected.

After studying the evidence presented by the DMV, we will often issue subpoenas for the calibration, maintenance and accuracy records for the device used. We can issue subpoenas for dispatch logs and dash-cam video to determine if a 15-minute period of observation occurred, or if proper procedures were followed in the collection of your samples. Consideration should be given to the possibility that a client may have pre-existing medical or dental conditions that may rebut the accuracy of the chemical breath samples; although this may require the testimony or declarations of doctors and/or forensic toxicologists.

When we discover weaknesses in the DMV’s scientific evidence, then the real work begins. Knowing there is a problem is not the same as proving there is a problem. There are very complicated and specific rules which control how evidence is introduced into a DMV hearing to attack the reliability of a chemical breath test. The DMV Defense Experts at CDA include former police officers, former DMV Hearing Officers and Forensic Alcohol Scientists who know how to discover, collect and present evidence at a DMV Administrative Per Se Hearing.

Attacking the DMV’s scientific evidence can be difficult. Call CDA…. We can help.

When the California State Legislature adopted the laws governing drunk driving in California, they empowered the DMV with the right to presume the accuracy of scientific evidence. Essentially this means that at a DMV Administrative Per Se Hearing, you are presumed guilty and the chemical breath samples are presumed accurate. Fortunately, this is called a “rebuttable” presumption, which means if a driver can prove that the chemical breath samples are not accurate or reliable, the DMV must listen. The DMV doesn’t want to listen and they don’t want to find that their evidence is wrong.

Because attacking chemical breath testing is a combination of law, science and procedure; it’s not reasonable for a driver to present this type of case alone.

The DMV Defense Experts at CDA use a team approach to attacking scientific evidence. Each of our experts works in their own fields of expertise and then come together to create hard-hitting and relevant attacks on the DMV’s evidence. If the loss of your driver license is not something you can endure, call CDA today. We’re ready to help.


Call Us to Win Your Administrative Per Se Hearing

When a driver enters an Administrative Per Se Hearing at the DMV, the deck is stacked against them. Under the provisions of Administrative Law, the DMV presumes your guilt and challenges you to prove them wrong. Also, the DMV Hearing Officer will do nothing to give you guidance, or to assist you in the presentation of your case. This is an incredibly “one-sided” affair if you don’t have help. On the other hand, when a driver enters an APS Hearing represented by one of the DMV Defense Experts from California Drivers Advocates, the entire atmosphere changes. The hearing officer is not nearly as arrogant when confronted by a DMV Defense Expert who knows as much, or more, about Administrative Law than they do.

CDA’s approach to an Administrative Per Se Hearing is one of complete investigation and preparation. Combine that with a quiet sense of confidence and professional demeanor, and the hearing officer knows they’re in for a fight. If the loss of your driving privilege can be a devastating blow to your career, your family, and your life, don’t waste one minute considering how to fight the DMV on your own. Call CDA immediately. We’ll put our hearts and souls into your defense.

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