Oregon DUI Lawyer Blog

Scientists have come up with a breath test that can reportedly detect methamphetamine in the breath. During the test, subjects wear a mask for 10 minutes. Their breath is then filtered, and small particles of drugs can be detected. Reports indicate that researchers are already hopeful that this technology could be used in DUI cases.

This test differs from alcohol breath testing in a key ways. The test does not measure the concentration of drugs. Unlike alcohol testing, which purports to determine the concentration of alcohol in the bloodstream, this testing only detects the presence of drugs. Indeed researchers say the test can detect drugs after the effects of the drugs have worn off.

This difference limits the usefulness of such a test in the DUI context. In drunk driving prosecutions, the government must prove that the driver was under the influence of alcohol or drugs. Without knowing the concentration of the drugs, the government's proof is not straightforward. This is particularly true since the scientists themselves indicate that the test works well after the drugs are active on a person.

Prosecutors and legislators are unconcerned with the problems with alcohol breath testing. Therefore, there is no reason to think, either group will be bothered by problems with drug breath testing. If this technology is marketed to law enforcement, it's use is the near future seems very likely.

A group of Chinese College students from Nanjing University of Finance & Economics recently invented a device they are calling the "Stop Prompted By Drunk." The device is a small sensor which is mounted in the car. The sensor detects the alcohol concentration in the ambient air of the car. If the concentration raises above a specified limit, the device prevents the car from starting.

Proponents of this new device claim that it is both cheaper and better than similar devices currently on the market. It may be cheaper, but claims of superiority seem dubious at best. Current ignition interlock devices require the driver to blow into a tube. A small machine then measures the alcohol concentration in the breath.

Given the problems with full size alcohol measuring devices, small devices are always tricky. At least with current models, however, the device is measuring the driver's breath. The Stop Prompted By Drunk device proposes measuring alcohol in the air. This alcohol could be caused by passengers, by open containers of alcohol, or denatured alcohol found in substances like hand sanitizer.

One advantage of the new device is that is frees the driver to operate the vehicle. In current interlock devices, the device occasionally requires the driver to give a breath sample while the vehicle is moving. This requires the driver to blow into the tube while operating the vehicle. This maneuver seems at least as dangerous if not substantially more dangerous than talking on a cell phone.

In an earlier post, I discussed how the slope detector on the Intoxilyzer 8000 does not work. I also posted a dramatic video showing the Intoxilyzer failing when someone rinsed his mouth with alcohol. Of course, in a real DUI case, the driver would never swirl vodka in his mouth right before blowing into the breath test machine. Today I would like to discuss one way in which the lack of a functioning slope detector is significant in real DUI cases.

Many people suffer from gastroesophageal reflux disease or GERG. This condition is sometimes popularly referred to as acid reflux disease. It is widespread and common in the population. People with GERG experience involuntary minor regurgitation.

This condition is significant to DUI cases because GERG can result in mouth alcohol. When someone with GERG has been drinking, he my involuntarily burp alcohol back into his mouth. Although not as dramatic as swirling vodka in the mouth before taking a breath test, the results can be the same.

In deed, GERG's undermining of the reliability of breath tests has been proved. In a peer reviewed paper, Dr.s Kechagias, Jonsson, Franzen, and Andersson demonstrated that people with GERG obtained false positives on breath alcohol readings.

Sadly, although this study was published over a decade ago, it is not widely known in the halls of justice. Dedicated DUI attorneys continue to introduce the study, however. To the extent the government is made aware of this study, the standard response is that the slope detector will prevent any false positives.

As we have previously seen, however, the slope detector in the Intoxilyzer 8000, the very machine used in Oregon, does not work. Therefore, there is no real safeguard against false positives.

This video of a DUI arrest is really too good to pass up. Aside from the humorous value, there is an important lesson here. Recordings of arrests are vital to getting an accurate picture of what really happened.

Although we don't know for sure what the police reports in this case said, we can guess from the officer's statements. The officer says that he is going to count this as a refusal. It is clear from the tape, however, that the man being arrested was not paying attention to the implied consent form when it was read. Indeed, on the tape the officer starts laughing, and it does not appear that he was able to clearly read the entire form.

These two facts could potentially lead to the suppression of the man's refusal. Such suppression could have a dramatic impact on the case. Although this case takes place elsewhere, in Oregon and most other jurisdictions, a refusal caries harsher penalties then a normal driving under the influence charge.

As a mentioned in an earlier post, with video you do have to take the good with the bad. In this case, the man does appear someone intoxicated on the video. Even so, a skilled criminal defense attorney would probably benefit from the video. If the refusal was suppressed, then the video could possibly be kept from the jury since it contained the refusal. In any event, it is a truly entertaining video.

Oregon uses the Intoxilyzer 8000 for its alcohol breath testing machines. Nearly every driving under the influence of intoxicants case involves an Intoxilyzer 8000. From Portland to Joseph, every community has at least one Intoxilyzer available for the police to use in DUII investigations. This represents a huge outlay of taxpayer money and a huge public reliance on the machine. Unfortunately, the machines simply do not work that well.

CMI, the maker of the Intoxilyzer, claim that the 8000 uses a slope detector to differentiate between mouth alcohol and breath alcohol. In theory, a slope detector works be measuring the rate of change in the alcohol reading. If the rate is too fast, the slope detector is supposed to determine that the alcohol must be coming from the mouth not from the lungs.

Slope detection is important for protecting the public. Because a driver is presumed to be intoxicated if he has a BAC of .08 or above, it is important to make sure no false positives are possible. The slope detector is supposed to insure that mouth alcohol cannot lead to an artificially high reading.

The slope detector on the Intoxilyzer 8000 does not work. Scholarly research has demonstrated that the slope detector does not work. A more dramatic demonstration can be seen in the video clip attached to this post. Unfortunately the quality is not very good. The results are striking however. Bear in mind, the CMI claims this type of result should not be possible with their machine.

Regardless of the breath test results, an Oregon DUII lawyer should challenge the Intoxilyzer 8000 anytime there is a change of mouth alcohol.

When someone is pulled over for DUI, it is far easier and cheaper to have him blow into a tube than it would be to draw his blood and have that blood analyzed in a laboratory. For that reason, breath testing is very attractive to law enforcement. Earlier this month I wrote about how alcohol breath testing machines generally work. Today I would like to focus on one specific part of that operation, partition ratios.

Alcohol concentration in breath is not equal to alcohol concentration in blood. Rather there is a ratio between the alcohol level in someone's breath and the alcohol in someone's blood. This ratio is called the partition ratio. Based on Henry's law, breath test manufactures assume that all people have a partition ratio of 2100 to 1.

There are, however, a number of factors that can affect an individual's partition ratio. Some of these are body temperature, atmospheric pressure, cell count in blood, physical activity, and hyperventilation. Surprisingly, when police arrest someone for DUI they do not take the person's temperature, or record the local atmospheric pressure. Both of these measurements would be simple to make with a thermometer and barometer. Other factors which might effect a person's partition ratio are not as easily measured.

As I have discussed earlier, it is well documented that breath testing is inaccurate up to 20% in either direction. This inaccuracy is largely because of partition ratios. If a person does not have a partition ratio of 2100:1, the results of the test will be inaccurate. The farther away from that assumed ratio a person is, the more inaccurate the test will be. Of course it is impossible to determine what someone's partition ration was when they were tested. This is because partition ratios not only differ from person to person. They also differ over time for any given person.

Everyone knows that when someone is arrested on suspicion of driving under the influence, he is given a breath test. Most people don't really understand why those tests are given or how they work. Breath test devices are developed and sold by competitive companies. These companies fight hard to keep their trade secrets secret. For this reason, it is sometimes hard to know exactly how (or if) the devices work without seeing the source code used by the computer chips inside the machines. Generally, however, we do know how the machines operate.

Oregon uses the CMI Intoxelizer Alcohol Analyzer Model 8000. It is a very impressive name. The last version was the 5000, and it is unclear why CMI skipped to 8000 for this version. Other popular competitors are the DataMaster and the Alcosensor.

Since I practice DUI law in Oregon I will focus on the intoxelizer. The intoxelizer uses inferred spectrometry to measure the changes in vibration rates when molecules are exposed to inferred light. Although this sounds complicated, it is really pretty straightforward. When someone blows into an intoxelizer, the breath is taken into a chamber. Inside that chamber, the breath has inferred light shone upon it. A sensor then measures the vibration rates of the molecules in the breath. Because different molecules have different vibration rates, CMI claims they can identify the concentration of alcohol in the breath.

One problem with this method of alcohol detection is that other molecules have similar vibration rates. Therefore, the intoxelizer could create false positives if someone has high levels of other chemicals such as acetone in their breath. This is common among people with diabetes.

Another problem with breath testing in general is that it assumes a correlation between breath and blood. This problem is present even if breath testing is accurate for breath alcohol. Once the breath is measured, a computer program spits out a number. That number is supposed to be the blood alcohol concentration. To generate that number the computer assumes that the person who blew is an average person. The computer assumes that the person's lung capacity and cardio vascular system work at the some functionality as the average person.

These assumptions make testing easy for the breath testing device manufacturers and the governments who buy the devices. It is far easier to celebrate a machine to an average person then to the actual individual being tested. The assumptions do introduce an added layer of doubt into the accuracy of the machines however.

In all states, including Oregon, breath tests are used as per se evidence of someone's guilt for the crime of DUI. There is no other crime where someone is presumed guilty if a machine says he has a measurement over a certain level. What makes this reality even more disturbing is that breath test machines are inherently inaccurate.

Breath test machines work by measuring the alcohol concentration in a subject's breath. Whether or not that actually do this particularly well is a matter for a later post. Even if these machines are able to accurately measure a person's breath alcohol concentration, however, research indicates that breath and blood alcohol levels can be vastly different.

Dr. Michael P. Hlastala, Ph.D., a professor of Physiology, Biophysics and of Medicine Pulmonary and Critical Care Medicine at the University of Washington conducted experiments comparing breath test results to blood results. His research into this area shows that the results can vary by as much as 20% plus or minus.

This is a staggering figure when applied to a DUI case. Imagine a defendant who has a blood alcohol concentration of .067%. According to Dr. Hlastala's finding, it is perfectly possible for that person to register a .08 on the breath test. Such a reading would be used as per se evidence that the person was intoxicated even though his actual blood alcohol was well under the legal limit.

In Oregon, as in all states, the police use field sobriety tests to make an arrest decision. Once someone is arrested for DUI, he is then asked to take a breath test. In a previous post I talked about why it is a bad idea to take the field sobriety tests. Today, I would like to focus on why I usually advise people to take the breath test.

This advice is somewhat more controversial. I do know some DUI lawyers who say people should not take the breath test. In most cases, however, I think it is generally a good idea. I believe it is actually easier to defend a DUI when the test was taken.

As a caveat, I will say that I believe someone should only take the breath test if he is read the implied consent warnings. This caveat is probably too technical for the average person who has just been arrested for DUI. That is why, as always, a person should ask to speak to an experienced DUI attorney before making any decisions.

When the police arrest someone for DUI, they read that person a form called the implied consent warning. On this form, the police warn the person that if he refuses to take a breath test the penalties will be worse than if he takes the test but fails. As I discussed in an earlier post about State v. Machuca, Portland Police are no longer reading this form in every case.

If someone is read that implied consent form and refuses to take the test, the prosecutor will argue at trial that the person must have known they would fail. It is true that the government won't have a number to show the jury, but they will get to use their favorite argument, that the person knew they were guilty. This argument can be very effective with jurors.

On the other hand, a skilled DUI lawyer may be able to get the results of that test suppressed. If that happens, the government will not have a number to show the jury and they won't be able to make their favorite refusal argument either. Even if the breath test does come in, I believe it is easier to show how unreliable the tests are then to explain why someone didn't take the test.

Of course if someone does refuse to take a breath test, he should still talk to an experienced DUI lawyer. Every case is different, and there are many types of defenses.

In the ever-changing area of Oregon DUI law, things just got a bit more interesting. On September 30th, The Court of Appeals held that the Implied Consent Warning is coercive. In State v. Machuca, the court held that because the defendant was threatened with economic harm and loss of privileges, his consent was not voluntary.

Machuca was a blood draw case, but the same reasoning should apply to breath test cases. The court of appeals did justify a test under the exigent circumstances exception to the warrant requirement.

So far, the shakeout from this decision is unclear. Many trial judges are still allowing breath tests into evidence. I believe there is a strong argument that exigent circumstances should never apply to a breath test. There is a statutory waiting period required before any breath test. This waiting period negates the concept of exigency. Even if exigency does properly apply to breath or blood tests, it is unclear why to police shouldn't at least have to try to obtain a telephonic warrant.

The Multnomah County District Attorney, the Portland City Attorney, and the Portland Police Department have decided to stop reading implied consent warnings initially during DUI investigations. Instead, Portland Police are now going to try to get the arrested person to consent to the test without warning them about the consequences. Without reading the implied consent warnings, the DMV should not be able to suspend a drivers' license administratively. This is one nice side effect of the Portland policy.

More litigation in this area is needed, and the Oregon Supreme Court has already agreed to hear the case. Briefing is due in this case by December. Oral arguments will likely be heard early next year.