Author Topic: The Breathalyzer  (Read 3545 times)

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Online Desert Fox

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The Breathalyzer
« on: December 31, 2016, 12:46:01 AM »
I have not been pulled over for being drunk but was arguing with somebody and found out that the the breathalyzer has a number of issues which I may need to be concerned with

http://aacriminallaw.com/breathalyzer-101-fail-test-sober/

Specifically that somebody with diabetes may trigger the breathalyzer test and so might a person on a low carb diet.  I don't want to spend money on a breathalyzer test but would be curious what my baseline might be since I am a diabetic.
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Offline Eternally Learning

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Re: The Breathalyzer
« Reply #1 on: December 31, 2016, 05:07:21 AM »
I'm certainly not even close to an expert, but since the Breathalyzer is used at my job all the time I figured I'd at least put my 2 cents out there.  First and foremost (at least in my area) a Portable Breathalyzer Test (PBT) is not to be used as evidence to arrest someone for DUI.  The roadside tests and/or any other major observations of the officer are what they use to do that and the PBT is more of just a guide for them and often may result in them being sent on their way with a ride.  For example, if a person chooses to take the PBT and is just in the area of .08 BAC, the officer may not bring them back to the station for a Breathalyzer test if they believe their BAC to be falling as they may well be under the legal limit by the time they take the test.  Also, the subject is legally entitled to take the matter up in court should they so choose and if their concerns have merit then they can get off.  Beyond all that, I think it'd be out of the question to get a blood test for every DUI arrest and while probably imperfect, if the Breathalyzer is reliable to hold up in court I think it is far better than nothing. 

Bottom line for me is that most of the examples the site gives seem to be extremely unlikely to land you with DUI charges on their own.  Looking online, it appears that diabetes can only account for up to about .06 for instance, and it is policy to wait 20 minutes after having anything in your mouth (such as using an asthma inhaler) before giving the test as that is enough time for such confounding factors to dissipate.  Also, most of the other stuff that might confound the machine aren't also going to provide law enforcement with probable cause to initiate a traffic stop or clues on a roadside test to make an arrest.  So while the test may not be perfect or as accurate as a blood test, it is by far better than nothing and is the most reasonable option available at this time.  Honestly, even a blood test is far from perfect as right now it usually takes longer to get a nurse to administer one, and in some areas they require the nurse to show up to court and testify for the results to be admissible (which they are not inclined to do). 

So if it was just the test alone that lead to charges, some of these points might have merit.  Since the lead up to the test involves giving law enforcement a reason to pull you over and reasons to arrest you before you even get to the test, then I think it's redundant enough to accept whatever risk of false positives may still exist to get the people off the road who put us all at risk with their bad judgement.  Also, it's worth remembering that cops want their arrests to stick in court too and thus have all the incentive in the world to do everything leading up to the Breathalyzer as properly as possible.  I know of some people that have gotten a bad reputation at court and among other LEOs for having their arrests overturned and believe me, it's not pleasant for them.  In fact, losing credibility at court can actually put their careers at risk.

Online Desert Fox

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Re: The Breathalyzer
« Reply #2 on: December 31, 2016, 05:33:50 AM »
One major issue is that all of the other tests are subjective. . . .One of the one that the police swear by, the Horizontal Gaze Nystagmus (HGN Test) has almost a 1/4 failure rate

The HGN test, according to the limited amount of studies done, is only about 77% accurate in determining Blood Alcohol Content about a .10. However, these studies are not rigorous studies that went through the rigors of being peer reviewed or even blind-tested, one of the hallmarks of unbiased studies. The HGN test has the potential for too many false-positives from mental and environmental factors.

http://www.duimiami.com/field-sobriety-exercises/Horizontal-Gaze-Nystagmus/

I don't even drink but I have read about two many cases where a police officer's subjective judgement ends up destroying a person's life. Even with possible problems, I actually would trust the breathalyzer more.
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Online Tassie Dave

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Re: The Breathalyzer
« Reply #3 on: December 31, 2016, 05:45:15 AM »
Also, most of the other stuff that might confound the machine aren't also going to provide law enforcement with probable cause to initiate a traffic stop or clues on a roadside test to make an arrest. 

What about random road side breathalyser tests? They don't need probable cause. If you are on a road where they decide to test, you have no option but to blow.
Refusal to blow is the same as blowing over the limit.

Our cops don't do the amusing road side tests we see on TV from the US. Here, If they think you've had a drink, or you've been in an accident (regardless of fault), or just because the cop is feeling bored, they can ask you to blow into a breath analyser. Again, refusal to blow is the same as blowing over the limit.

For a lot of drivers even a 0.01 mistake can be costly. Learners and Provisional drivers can not have any alcohol in their systems. The same with drivers who have been given a conditional licence after previous DUI's.
« Last Edit: December 31, 2016, 05:51:08 AM by Tassie Dave »

Offline Eternally Learning

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Re: The Breathalyzer
« Reply #4 on: December 31, 2016, 06:07:26 AM »
Also, most of the other stuff that might confound the machine aren't also going to provide law enforcement with probable cause to initiate a traffic stop or clues on a roadside test to make an arrest. 

What about random road side breathalyser tests? They don't need probable cause. If you are on a road where they decide to test, you have no option but to blow.
Refusal to blow is the same as blowing over the limit.

Our cops don't do the amusing road side tests we see on TV from the US. Here, If they think you've had a drink, or you've been in an accident (regardless of fault), or just because the cop is feeling bored, they can ask you to blow into a breath analyser. Again, refusal to blow is the same as blowing over the limit.

So I just checked and in the agency I work in, we cannot require someone to take a PBT (Portable Breathalyzer Test) and a refusal is not treated the same as blowing over the limit.  While the test results can constitute probable cause to make an arrest, they are trained not to rely on it and the results are not admissible in court.  Also, we do conduct roadside tests including HGN (though I don't usually see it and thus don't know much personally about them).  It's worth repeating that most people we bring in here are clearly impaired in one way or another.  Most of the time, I am not accustomed to seeing DUI arrests with people who seem completely sober otherwise.  Is that subjective and anecdotal?  Sure, but I'm not commenting as an expert; just adding what I do know.

One major issue is that all of the other tests are subjective. . . .One of the one that the police swear by, the Horizontal Gaze Nystagmus (HGN Test) has almost a 1/4 failure rate

The HGN test, according to the limited amount of studies done, is only about 77% accurate in determining Blood Alcohol Content about a .10. However, these studies are not rigorous studies that went through the rigors of being peer reviewed or even blind-tested, one of the hallmarks of unbiased studies. The HGN test has the potential for too many false-positives from mental and environmental factors.

http://www.duimiami.com/field-sobriety-exercises/Horizontal-Gaze-Nystagmus/

I don't know much about that test, but even if it's not perfect it is still another test to be taken into account and compared to the Breathalyzer.  Again, if they are getting arrested by a cop who is above board, there will be a reason.  As for those that mess things up either through incompetence or malice, I'm hard pressed to think of a profession where that isn't an issue in one way or another.  I did work with one guy who was a complete idiot and did not know what he was doing, and everyone knew it and was pissed off at him because it made the whole agency look bad.  His supervisors were absolutely NOT inclined to overlook his sloppy work and the few times he made the wrong calls, he had his ass handed to him and the person was released.  I also have heard people talk about other cops who have completely lost their reputation for bad arrests at court and as such have no incentive to make DUI stops anymore since the judges won't even hear a case they bring.

I don't even drink but I have read about two many cases where a police officer's subjective judgement ends up destroying a person's life. Even with possible problems, I actually would trust the breathalyzer more.

Sure, I can understand that view, but just in the 3 years I've worked at this job I have known and known of too many cops who were hit by drunk drivers while on a traffic stop and wound up seriously injured or dead.  I've also dealt with too many DUI related fatal accidents in just my areas alone.  We'll never have a perfect system without flaw or opportunity for good people to be harmed, but I don't think taking away the tools used by the police to make DUI arrests is a good idea just based on some doubt and I definitely think that having more layers of tests (flawed though they may be) only decreases the odds of someone innocent slipping through the cracks.
« Last Edit: December 31, 2016, 06:13:25 AM by Eternally Learning »

Offline Eternally Learning

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Re: The Breathalyzer
« Reply #5 on: December 31, 2016, 06:17:18 AM »
I should also add that I know of a lot of instances where troopers have told me that they were pretty sure a person was drunk, but since they couldn't get enough clues on their roadside tests, they allowed a friend to come and pick them up.

Online Desert Fox

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Re: The Breathalyzer
« Reply #6 on: December 31, 2016, 06:26:19 AM »
In my job, I drive a lot at night. . . .I have been pulled over a few times. One case it was because I slightly went slightly over the line and in another I don't know. Never really gave an intelligible reason. In neither case was I given a ticket and allowed to just go on my way without even a warning.

I think the real reason is because they are hunting for drunks. I also suspect that the real test is that as soon as you open your window, they smell alcohol on your breath. As soon as I did that, they smelled nothing so they pretty much  just went through the check driver's license motions.

The HGN Test is where the cop uses a flashlight to watch your eye movement. If your eyes don't track right, you fail the test.

The thing that brought up this discussion is this case though:
http://www.upi.com/Top_News/US/2016/12/28/California-man-charged-with-DUI-only-tested-positive-for-caffeine/4541482931216/
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Re: The Breathalyzer
« Reply #7 on: December 31, 2016, 06:31:33 AM »
In my job, I drive a lot at night. . . .I have been pulled over a few times. One case it was because I slightly went slightly over the line and in another I don't know. Never really gave an intelligible reason. In neither case was I given a ticket and allowed to just go on my way without even a warning.

I think the real reason is because they are hunting for drunks. I also suspect that the real test is that as soon as you open your window, they smell alcohol on your breath. As soon as I did that, they smelled nothing so they pretty much  just went through the check driver's license motions.

I definitely know they hunt for drunks, but if they cannot articulate good probable cause for the stop, it can be thrown out in court.  I cannot even count how many DWTs (driving while tired) and DWOs (driving while old) we've had over the years.  I'm sure some troopers use any excuse to get a whiff, and honestly I'm cool with it.  As long as they are not lying about any of it that is.

The HGN Test is where the cop uses a flashlight to watch your eye movement. If your eyes don't track right, you fail the test.

The thing that brought up this discussion is this case though:
http://www.upi.com/Top_News/US/2016/12/28/California-man-charged-with-DUI-only-tested-positive-for-caffeine/4541482931216/

I'm familiar with the idea, just not the specifics.

Online Tassie Dave

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Re: The Breathalyzer
« Reply #8 on: December 31, 2016, 06:36:45 AM »
Aussie cops are usually not as forgiving. They will use a breathalyser for any reason at all. Sometimes just because it gives them something to do.
Even living in a tiny country town, I get put on the breatho at least once or twice a year. There are only 2 roads going in or out of the valley I live in. That's where they set up the RBT (Random Breath Tests)

I know a lot of people here would prefer the US style roadside tests. They think that they could fool them. Especially with our allowed blood alcohol level having to be below 0.05

It doesn't pay to refuse the tests here. You get a higher level offence and usually a larger fine. I have heard of people arguing down a breathalyser result to a lower level or even having it thrown out. You don't get that with a refusal.

I never drink or drive any time, so the breatho is just wasting my time. But If they keep one drunk from killing one person, I guess it is a necessary inconvenience.

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Re: The Breathalyzer
« Reply #9 on: December 31, 2016, 07:00:37 AM »
I assume that they have you take it whether they smell alcohol or not. . . .What do they do with asthmatics and people who have smaller lungs? 
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Offline Eternally Learning

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Re: The Breathalyzer
« Reply #10 on: December 31, 2016, 07:09:43 AM »
There isn't much resistance to the breath sample and you really don't have to blow that hard.  The vast majority of people who "are incapable" are playing games I'm sure.  Especially those woth prior DUI history who know the game.

Offline Harry Black

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Re: The Breathalyzer
« Reply #11 on: December 31, 2016, 07:13:00 AM »
The law here regarding breathalysers is the same as what Tassie is describing.
If the cops here wish to press charges for drink driving however, they must bring you to a station and take blood and urine samples which are required in court. Again, failure to provide them is an offence.
So if the machine mucked up, you would not end up prosecuted in the wrong.
The field sobriety test looks sketchy as fuck to me but maybe its good for catching things other than booze?

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Re: The Breathalyzer
« Reply #12 on: December 31, 2016, 07:15:19 AM »
Yeah, when people fail field sobriety and blow 00s, we can call for a DRE certified person who can perform tests to identify if they are drug impaired and by what drugs.  Not something I see very often, but it's happened.  Usualy the individual is really messed up for that to happen.

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Re: The Breathalyzer
« Reply #13 on: December 31, 2016, 07:19:33 AM »
All of the US stops I see on youtube and tv are a result of erratic driving etc, whereas here, there are just random checkpoints in random places on random nights and always on busy nights and they are manned by 2-3 units.
They will check tax on vehicles and briefly chat to each driver and administer random (and not so random) tests.
It seems to work pretty well and road deaths have dropped sharply since it has been in operation.
Does any of that happen in the US?

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Re: The Breathalyzer
« Reply #14 on: December 31, 2016, 08:17:19 AM »
Yup.  Checkpoint happen now and again and I believe they go pretty much the same way you describe.