Artificially High Readings And False Positives In Florida Dui Cases

By Author: Michael Dye
Total Articles: 4
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Often the most damaging evidence during a DUI prosecution is the results of a breath test. In an effort to convict someone of DUI, the State will present a Breathalyzer result of .08 or higher as evidence that an individuals blood alcohol concentration was over the legal limit. You will need to note, that a Breathalyzer test is what is considered an "indirect test." The reason that the Breathalyzer is an indirect test is because it purports to measure blood alcohol concentration by use of something other than blood. Obviously the Breathalyzer uses air in the lungs so as to determine blood alcohol concentration. In order for an indirect test to be accurate there must be a correlation between the quantity of alcohol found in exhaled breath and blood contained in the circulatory system. One of many faulty assumptions with the Intoxilyzer 8000 is that the result given does not take into consideration numerous variables. Unfortunately, in a DUI case, once the State has laid the evidentiary foundation required to admit the test result, the DUI defense attorney's job is to explain how a result was obtained. This is often what ...
... is known as a "burden shift" and is otherwise unconstitutional in every other type of criminal case. It is said that the burden of proof for the State for a DUI case is lower than any other type of criminal case. DUI attorneys commonly call this the "DUI exception to the Constitution."The design of the Intoxilyzer 8000 is designed to prevent common occurrences from producing an inaccurate result. One of the issues frequently raised is the problem of mouth alcohol impacting the results of the test. Essentially, mouth alcohol is alcohol that is not exhaled from the lungs, but rather alcohol in an individuals mouth. That seems simple enough. As a way to eliminate a false high test result and be sure that the result is admissible in a DUI prosecution, the officer administering the test is required to conduct a 20 minute observation in an effort to insure that the individual does not regurgitate and/ or vomit which may cause alcohol in the stomach to go to the mouth. In addition to requiring a 20 minute observation period, the Intoxilzyer 8000 includes a "slope detector." The slope detector is intended to prevent mouth alcohol from giving an artificially high reading. The bottom line is that the slope detector does not work. Click on this link to observe the slope detector fail on the Intoxilyzer 8000. Slope Detector Fails on Intoxilyzer 8000. Video courtesy of Stephen Daniels and DUI Undo Consultants, LLC.In addition to regurgitating, vomiting and belching, mouth alcohol often is influenced by dentures and other items in the mouth. Recently a portable breath test result was excluded in the case of State of Illinois vs. Mark Ditka on account of the fact that he was chewing tobacco immediately before he was asked to take the portable breath test. Chewing tobacco or snuff contains a byproduct of alcohol called acetaldehyde. Due to the way that certain breath testing machines read the infrared spectra, the machines can easily confuse ethyl alcohol with acetaldehyde.The manufacturers of infrared breath testing equipment have gone to great lengths in an effort to remedy false positives and/or artificially high readings. The machines can also render false positive results because of exposure to certain hydrocarbons. Regarding the older model Intoxilyzer 5000, there's some debate as to if an individual will register a result if exposed to a compound called toluene. The Intoxilyzer 5000 reads the infrared spectra produced at 2 points in an effort to eliminate false positives for other hydrocarbons. An article entitled "The Response of the Intoxilyzer 5000 to Five Potential Interfering Substances" is a peer reviewed and published article which indicates that the Intoxilyzer 5000 will yield a positive result for alcohol based on exposure to toluene. The article was written by JP Caldwell and NP Kim of the Department of Chemistry, University of Waikato, Hamilton, New Zeland. A contrary position was taken in the article "Toluene and the Intoxilyzer 5000: No Response to Concentrations Found on Human Breath" written by PL Glover. Additional factors that been shown to effect the readings of infrared spectroscopy breath testing devices include acetone on the breath, asthma, altitude, blood contained in the mouth.......the list can go on for an awfully long time. However, it is rather clear that these machines will render false positives and artificially high readings in certain circumstances. Since the test result is an important piece of evidence in any DUI proceeding, it is important to examine not only the piece of paper with the number, but the data and records from the individual machine in order to see exactly how that number was reached.Michael Dye is a Florida DUI Attorney located in Fort Lauderdale, Broward County, Florida. For more information, please call (954)745-5848 or visit http://AlcoholAndDrugLaw.com.