Tag Archives: breath testing

Ohio DUI Law: The Hematocrit Defense

English: Two drops of blood are shown with a b...

How bloody is your blood?  The hematocrit is the number expressing the cell volume of blood (the size and number of red blood cells in proportion to the rest of the blood).  As humans, we all have a natural variation in our hematocrit.  Healthy men have a natural variance from 40.7% to 50% and healthy women have a natural variance from 36.1% to 44.3%.  The hematocrit level is a moving target.  Illness, hydration and stress can cause variations in the hematocrit level.

The hematocrit level affects all breath tests by governing how much alcohol may be contained in the blood and, in turn, how much will pass into the breath. See Nesci, How to Beat a DUI, 2008 ed., p. 57.  Under the best of conditions, normal hematocrit ratios will lead to a +/-5% difference in a breath test result.  Let’s pause for a moment to contemplate this fact.  Would you accept this degree of error from your bank? “We know you asked for $10,000.00, but giving you $9,500 is within our margin of error.”

Breath testing machines do not have built in mechanisms for detecting and stabilizing hematocrit levels.  The machine is forced to use an assumed hematocrit level of 45% (averaging the male average of 47% and the female average of 42%).  As we have seen above, this builds in a bias against the average female test subject who has a lower hematocrit average and may, in fact have a wildly lower hematocrit level than that assumed by the machine.  So what does this mean for women?  A person with a lower hematocrit level will have a falsely high BAC reading. See Alcohol Problems and Solutions, David J. Hanson, PhD., Breath Analyzer Accuracy.  As one writer observed,

Breath testing, as currently used, is a very inaccurate method for measuring BAC. Even if the breath testing instrument is working perfectly, physiological variables prevent early reasonable accuracy….Breath testing for alcohol using a single test instrument, should not be used for scientific, medical or legal purposes where accuracy is important. Hlastula, M. Physiological errors associated with alcohol breath tests . The Champion, 1985, 9(6). Quoted in Taylor, L. Drunk Driving Defense. New York: Aspen Law and Business, 5th edition, 2000.

Another area that is affected by the machines built-in assumptions are tests done on people suffering from anemia.  Anemia is a condition in which your blood has a lower than normal number of red blood cells.  If you have anemia, your body doesn’t get enough oxygen-rich blood.  The body compensates by putting replacing the red blood cells with blood plasma.  Alcohol has more of an affinity for the plasma because it is liquid (as opposed to the solid red blood cells).  It follows that the higher the ratio of liquid to solids in the blood (called the hematocrit), the higher the amount of alcohol in the blood — and the higher will be the reading on the breathalyzer. Id. See also HERE.

 Charles M. Rowland II dedicates his practice to defending the accused drunk driver in FairbornDayton,SpringfieldKetteringVandaliaXeniaMiamisburgSpringboroHuber HeightsOakwood,BeavercreekCenterville and throughout Ohio.  He is counsel to Miami Valley NORML and a speaker for LEAP (Law Enforcement Against Prohibition).  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebookand on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at:CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

DUI Science and More Faulty Breath Machine Assumptions

Evidential Breath Testing Measures The Amount of Alcohol In Your Breath Not in Your Brain!

A chimpanzee brain at the Science Museum London

One of the faulty assumptions underlying evidential breath testing is the assumption that the tests are measuring the ability of alcohol to impair your brain.  They do not.  The breath test does not care how, or even if, the alcohol is impairing your brain only that it is in your breath via your lungs via your blood.  The machines do not test venous blood but arterial blood utilizing the scientific principle of Henry’s Law.  As alcohol can be at different rates throughout your body, the machine is not measuring impairment.

During peak absorption arterial blood is higher than  venous blood.  Arterial blood travels to the lungs for normal bodily air exchange and comes into contact with the highest level of alcohol concentration thereby resulting in an overstated (disproportionately high) BAC level.  Venous blood  more accurately indicates BAC levels inside the tissues of the brain and is a better indicator of how much the alcohol is impairing your brain function.

When you start looking closely at the built-in assumptions underlying the tests, you begin to see that evidential breath testing is not the whole truth and nothing but the truth.  Like any other evidence offered in the courtroom it should be vigorously cross-examined just like any other witness against you.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, Huber Heights, Beavercreek, Centerville and throughout Ohio.  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook, www.facebook.com/daytondui and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

Residual Mouth Alcohol, Slope Detectors and the 20 Minute Observation

Someone using a breathalyzer

One of the most prevalent causes of error in breath-alcohol analysis is the presence of alcohol in the mouth.  This residual mouth alcohol (hereinafter R.M.A.) contaminates the expired breath captured by the machine and elevates the test results radically.  The BAC Datamaster’s computer is programmed to assume that a breath test reading is 100% deep-lung (alveolar) air.  This captured “deep-lung” air is then multiplied by 2100 pursuant to the accepted and scientifically defensible partition ratio.[1] Using these built-in assumptions it is evident that a very small amount of undigested (or trapped) alcohol can have a disproportionate impact on the reading.

At DUI seminars, OVI defense attorneys will often trot out a 55 gallon drum and an eye dropper.  The 55 gallon drum represents roughly the same capacity as a 210 liter sample of air (the volume used in the machine’s breath analysis) and the eye dropper is loaded with just a drop of liquid.  The infinitesimal amount of liquid is used to demonstrate to the jury how even just a drop in the bucket (of undigested R.M.A.) can lead to a falsely elevated test.

RESIDUAL MOUTH ALCOHOL IS A MYTH MADE UP BY OVI DEFENSE ATTORNEYS…RIGHT?

Mouth alcohol contamination is not a myth made up by OVI defense attorneys.  The manufacturers of the BAC Datamaster addresses the importance residual mouth alcohol in their own materials.  “The importance of observing the initial waiting period of 15[2] minutes, minimum, cannot be overstressed.  Around it hinges all the statements of scientific certainty regarding the validity of the breath test reading without any possible contribution from mouth alcohol.” Fusco & Radomski, Basic Science of Evidential Breath Alcohol Testing, p. 14. (emphasis added)  The phenomenon of R.M.A. has been recognized by the American Medical Association’s Committee on Medical Problems, which stated in its Manual for Chemical Tests for Intoxication (1959): “True reactions with alcohol in expired breath from sources other than alveolar air (i.e.. alcohol trapped in dentures) will, of course, vitiate the breath alcohol results…”[3] And see Caddy, Sobell and Sobell, “Alcohol Breath Tests: Criterion Times for Avoiding Contamination by ‘Mouth Alcohol,’”[4] in which the authors conclude that when a subject is given ethyl alcohol in concentrations ranging from 4 percent to over 95 percent, the time for total dissipation of the mouth alcohol ranged from 10 to 19 minutes.

Science has also focused on dentures causing unduly high readings.  A study conducted by the Colorado Department of Health  placed a wafer style dental adhesive (Sea-Bond) into a subject’s mouth and then had him drink approximately 8 milliliters of a 50 percent ethyl alcohol and water solution.  He was then tested on infra-red breath testing devises every five minutes.  He had immediate readings of .480 percent – indicating a BAC level that would cause death in most.  The .480 reading was repeated at the 5 and 10 minute tests; the BAC level dropped to .425 percent after 15 minutes and to .314 percent after 20 minutes. The subject was still registering .112 percent after 35 minutes, indicating a BAC level in excess of Ohio’s per se limits despite having actually consumed an insignificant amount of alcohol.  As a result of this study, Colorado’s Department of Health issued an advisory to the State’s breath test operators that dental adhesives were to be considered a foreign object and that dentures were to be removed prior to any evidentiary testing.[5] The results of this study eerily mirror the tests results now before the court.

THE SLOPE DETECTOR WILL CATCH R.M.A. AND INVALIDATE THE TEST…RIGHT?

Wisconsin conducted a study which is frequently cited by the prosecution-oriented.[6] It tested twenty-five subjects and focused on whether dentures affect mouth alcohol.  The test concluded that “dentures do not significantly affect mouth alcohol retention time .”  However, the test was flawed for purposes sub judice.  Only 25 subjects were used in this study; the study focused not on trapped or ambient alcohol but on dissipation; the author of the study went on to become the leading defense expert in the western United States (MacMurray); and the authors of this study and Fusco and Radomski warn in their literature, “Slope detection is not a substitute for procedural countermeasures.” See Fusco and Radomski, Id. At 16.  The conclusions that can be drawn from the best prosecution-oriented study are thus:  Look for and remove dentures if you can!

It is also important to note that the slope detector on the machine can be “fooled” by the consistent presence of mouth alcohol.  In order to “trip” the slope detector must register a “spike.”  Here, the denture’s trapped alcohol would allow for a uniform reading.  The machine will not detect an anomaly and will not detect a negative slope.  In fairness to the machine, no negative slope would be present, just an anomalous reading.  Again, we have scientific studies to back up this assertion.  In “Breath-Alcohol Concentration May Not Always Reflect the Concentration of Alcohol in Blood” 18 J. Analytical Toxicology 225 (July/Aug 1994), a 37 year-old man consistently recorded levels twice the legal limit, but had an actual blood-alcohol concentration below the legal limit.  Although the researchers could give no explanation, they did note the existence of extensive dental work, including three bridges.  A forensic odontologist expressed the view that a reservoir of alcohol might be retained within the spaces occupied by these bridges and that this might be the possible explanation for the excessively high breath-alcohol readings observed.

THE LAW RELATING TO “ORAL INTAKE” AND THE “TWENTY-MINUTE OBSERVATION PERIOD.

 

When applying the science to the law, the Court can look to recent law as set forth below which would grant the court the power to invalidate the test.  However, the State’s best argument is to avoid application of the science by the court and have the issue go before a jury.

  1. SUBSTANTIAL COMPLIANCE IS NOT MET WHEN THE DEFENDANT TAKES A TEST WITH A FOREIGN OBJECT (SUCH AS DENTURES) IN HIS MOUTH.

In State v. Baldridge 2001-Ohio-7029, 2001 WL 1673756 (Ohio Ct. App. 5th Dist. Ashland Co. 2001) as cited in Painter, Ohio Driving Under the Influence Law (2007 Ed.), p 121, the Court held that whether a subject has something in his mouth is a bright-line rule to which the substantial compliance standard is inapplicable. (emphasis added). Within the context of Ohio Adm. Code 3701-53-02, the term “oral intake” for purposes of submitting to a chemical test, means that material must be orally ingested in such a manner that it would be digested and pass into the blood stream, or received into the respitory system and interact with alveolar air so as to have an effect on the breath test result. State v. Birth (1987) , 41 Ohio App. 3d 113.  The science cited above and a clear reading of both the case law and Ohio Adm .Code 3701-53-02 would result in the test being excluded.

  1. EVEN UNDER A SUBSTANTIAL COMPLIANCE STANDARD THE COURT CAN PREVENT THIS TEST FROM COMING IN.

It is within the trial court’s discretion to weigh evidence and determine credibility whether the required observation period was met. State v. Edens, 1987 WL 15054 (Ohio Ct. App. 11th Dist. Portage County 1987); State v. Williamson, 1985 WL 6754 (Ohio Ct. App. 1st Dist. Hamilton County 1985); State v. Trill, 66 Ohio App.3d 622, 585 N.E.2d 914 (11th Dist. Trumbull County 1991); State v. Gregory, 1999 WL 756440 (Ohio Ct. App. 7th Dist. Columbiana County 1999).

The State’s best argument for introduction of the test is that it substantially complied with the testing procedures set forth by the Ohio Department of Health.  The State can effectively side-step the science, cited above, and argue that the dentures do not constitute oral intake because they were already in the Defendant’s mouth during the twenty minute observation period.  That is the argument made in State v. Arledge, 4th Dist Ct. App. Hocking County 91-WL 5059.  The argument therein stated that because the officer followed the ODH regulations and no “oral intake” occurred during the twenty minute observation period, substantial compliance required the issue to go to the jury.

In effect the Arledge court interpreted Ohio Adm. Code 3701-53-02 to preclude only oral intake. Within the context of Ohio Adm. Code 3701-53-02, the term “oral intake” for purposes of submitting to a chemical test, means that material must be orally ingested in such a manner that it would be digested and pass into the blood stream, or received into the respitory system and interact with alveolar air so as to have an effect on the breath test result. (emphasis added) State v. Birth (1987) , 41 Ohio App. 3d 113.

The mouth and throat are part of the respitory system.   The presence of trapped alcohol in the dentures would be received into the respitory system and would have an effect on the results.  Such an interpretation would bring the two cases in compliance with the later case law (State v. Baldridge) cited above.  In dicta, even the Arledge court suggests that the best course of action would be to remove the dentures.

A further factor which is only addressed in the footnotes of Arledge is the courts “gatekeeper” function.  The trial court has broad discretion in admitting and excluding evidence based on scientific processes. State v. Bresson (1990), 51 Ohio St.3d 123, 129.  Further, Evid.R. 403 grants the court power to exclude “junk” science via a motion in limine.  From a purely procedural aspect the entire Arledge decision is rendered moot by a proper request in limine.

In State v. Siegel, 138 Oiho App.3d 562, 2000-Ohio-1747, 741 N.E.2d 938 (3d. Dist. Logan County 2000), the Court ruled that the oral intake of any material, including water, renders the test as not substantially compliant with ODH regulations.  In State v. Dixon, 2002-Ohio-6174, 2002 WL 31521434 (Ohio Ct. App. 5th App. Dist. Stark County 2002), the ingestion of breath mints during the twenty minute observation period resulted in a finding that the State had not substantially complied.

CONCLUSION

The science supports exclusion of the test.  R.M.A. is likely and that the resulting test is compromised..  If the court wishes to venture into the realm of “whether or not the State substantially complied with ODH regulations,” I cite the critique of such an approach by Judge Painter who states:

In legal as well as scientific matter, rigid lines often create considerable disputes even among experts.  Absent strict adherence to the established standards, any testing regulation may be open to further expansion of its parameters justified by a substantial compliance approach.  For example, does an instrument check or calibration of a breath-testing device once every eight, rather than seven, days substantially comply with O.A.C.  3701-53-04(A)?  Under the foregoing circumstances would a defendant’s breath test result be admissible unless prejudice was demonstrated?  The Ohio Supreme Court recognized this problem in State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71 (2003).  Citing this book, that court determined that it should limit Plummer to “excusing errors that are clearly de minimus.”  The court emphasized that the criterion for admissibility under RC 4511.19 was compliance with the regulations, and not judicial determination of the reliability of the tests.[7]

“It is better that ten guilty go free than that one innocent be punished.”


[1] The machine observes a theoretical “constant” ratio between the concentration of alcohol in the blood and the concentration in the deep lung air.  The average ratio among human beings is generally accepted as being 1:2100, that is, the same weight of alcohol will be in one cubic centimeter of deep-lung (pulmonary lung) air as in 2.1 liters of deep lung breath.  This is, of course, only an average an studies have concluded that the ratio, in fact varies widely. See S. Tsukamoto, et al., An Experimental Study on the Ethanol Ratio of Breath to Blood, 37 Japan J. Legal Med. 823 (1983).

[2] The State of Ohio, through its Department of Health has followed the majority of states in lengthening the mandatory observation period to twenty (20) minutes.

[3] Cited originally in Taylor, Drunk Driving Defense (6th Ed., 2006) pp. 424

[4] 10(6) Behavior Research Methods & Instrumentation 814-18 (1978).

[5] The resulting actions of the study upon Colorado’s Department of Health are set forth at Taylor, Drunk Driving Defense, (6th Ed., 2006) p. 425.

[6] Harding, P. MacMurray M. et al. “THE EFFECT OF DENTURES AND DENTURE ADHESIVES ON MOUTH ALCOHOL RETENTION” Journal of Forensic Sciences, July 1992.

[7] Painter, Ohio Driving Under the Influence Law, (2007 Ed.) pp. 111.

Dayton DUI Law: The GERD Defense

Mouth

Regurgitation and Reflux are not the same thing!  Reflux is the movement of ethanol vapor back up the esophagus from the stomach which has the ability to contaminate a breath sample.  The defendant who suffers from Gastroesophageal Reflux Disease (GERD) will not exhibit outward signs of distress or other signs which a breath testing technician would likely notice.  The surging ethanol vapor can cause an elevated reading on an evidential breath testing device.  The elevated test can appear following a valid and conscientious observation period.  Because the evidential breath testing device cannot distinguish contaminated air from deep-lung alveolar air, it registers a reading which can be incredibly higher than observational evidence (i.e. the standardized field sobriety tests) would suggest.

Do you have GERD? Do you have a verifiable diagnosis?  Have you been on prescription medication for this disorder?  If you answered yes to these questions, have your Ohio OVI attorney consider the science behind a reflux-based defense.  Attorney Charles M. Rowland II is certified in Forensic Sobriety Assessment, has been trained in the administration and evaluation of the standardized field sobriety testing, and has attended the National College for DUI Defense Forensic DUI Science national seminar where he was trained in presenting science based drunk driving defenses.  In addition, Charles M. Rowland has been certified on the operation, calibration and maintenance of the  Intoxilyzer 8000 and the BAC DataMaster breath testing machines.  Ohio drunk driving attorney Charles M. Rowland can be reached by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (1-888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  Visit www.DaytonDUI.com, www.SpringfieldDUI.com, www.OhioDUIdefense.com, www.KetteringDUI.com, www.BeavercreekDUI.com, www.FairbornDUI.com,  www.VandaliaDUI.com, www.HuberHeightsDUI.comwww.MiamisburgDUI.com, www.XeniaDUI.com or www.CharlesRowland.com.  Immediate help is available by filling out the CONTACT form on any of these pages.

For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter at www.Twitter.com/DaytonDUI or Get Twitter updates via SMS by texting follow DaytonDUI to 40404. DaytonDUI is also available on Facebook and you can access updates by becoming a fan of Dayton DUI/OVI Defense.  You can also email Charles Rowland at: CharlesRowland@CharlesRowland.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

I Did Not Refuse!

ACT Police Breath Testing/Command truck

If you were tested on an Intoxilyzer 5000 breath test machine, the source-code (software inside the machine) may have been rigged against you.  One of the most dramatic happenings in the science of a DUI has been the developments of the source-code battle taking place in Minnesota.  Ohio has recently rejected the Ohio-made BAC DataMaster in favor of the Intoxilyzer breath test machine (often referred to as the Intoxi-LIAR) so we can soon expect similar science-based battles in the Buckey State.

Chuck Ramsay, a DWI attorney in Minnesota has been litigating the reliability of the Intoxilyzer 5000 for several years.  Recently in Minnesota a Court has held that the machine cannot be used to prove that a person refused to give a sample.  The idea of the machine is that a person must blow a certain amount of air thru the machine for a certain length of time.  If not, the machine classifies the non sample as a “deficient” sample.

Few people realize that Judge Abrams did not find that all test results are admissible. He actually highlighted the fatal errors in the source code that wrongly reject perfectly valid samples, stating that, “In cases in which the Intoxilyzer 5000EN … reported a ‘Deficient Sample,’ the Source Code of the instrument does impact the reliability, solely, of this result. Evidence in such cases of a ‘Deficient Sample’ test report should not be allowed ….”

In the order’s Conclusion, the court indicates the machine reports a deficient sample even when the sample is not actually deficient.

There is one limited situation, as discussed earlier, in which the labeling of a sample as “deficient” arises from multiple causes. At least one of these causes is a consequence of the Source Code’s instructions to the microprocessors and has little, if anything, to do with whether the sample is actually deficient.

Under my cross examination, BCA experts were forced to openly admit that the current version of the source code has more than three times the number of deficient samples as the prior version. According to the BCA’s own data, hundreds of drivers each year who provide a sample greater than 1.1 liters are deemed to have provided a deficient sample!

Like Minnesota, it is an offense in Ohio to refuse to give a breath sample.  In many circumstances, an officer who sees the machine register a “deficient sample” will mark the case as a refusal and the innocent client will face harsher penalties.  If you, or a loved one, are arrested for DUI in Ohio do you trust that the Intoxilyzer will properly “guess” in your favor?  Do you think that “close enough for government work” should replace the traditional American values of Innocent Until Proven Guilty, or Proof Beyond a Reasonable Doubt?  We at DaytonDUI will keep fighting for you.