Skeptics Guide to the Universe Forums

General Discussions => Skepticism / Science Talk => Topic started by: Desert Fox on December 31, 2016, 12:46:01 AM

Title: The Breathalyzer
Post by: Desert Fox 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.
Title: Re: The Breathalyzer
Post by: Eternally Learning 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.
Title: Re: The Breathalyzer
Post by: Desert Fox 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.
Title: Re: The Breathalyzer
Post by: Tassie Dave 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.
Title: Re: The Breathalyzer
Post by: Eternally Learning 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.
Title: Re: The Breathalyzer
Post by: Eternally Learning 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.
Title: Re: The Breathalyzer
Post by: Desert Fox 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/
Title: Re: The Breathalyzer
Post by: Eternally Learning 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.
Title: Re: The Breathalyzer
Post by: Tassie Dave 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.
Title: Re: The Breathalyzer
Post by: Desert Fox 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? 
Title: Re: The Breathalyzer
Post by: Eternally Learning 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.
Title: Re: The Breathalyzer
Post by: Harry Black 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?
Title: Re: The Breathalyzer
Post by: Eternally Learning 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.
Title: Re: The Breathalyzer
Post by: Harry Black 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?
Title: Re: The Breathalyzer
Post by: Eternally Learning 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.
Title: Re: The Breathalyzer
Post by: daniel1948 on December 31, 2016, 09:53:00 AM
... 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.

My suggestion: Go to a police station and tell them just that: That you are diabetic, and have heard that the breathalyzer can give a false positive, and ask if they will give you the test now and tell you the result. Best if you walk there, just in case. Then if it's high, you cannot be charged with driving there drunk. Depending on the cops, they might be willing to give you the test.

The first two links you gave are from law firms advertising for people to try to beat DUI charges. I suspect they may be exaggerating the situation in order to get clients. "Arrested for driving drunk? We can help you beat the charges in court by arguing against the tests."

I've never been given the test. But I'm a morning person, and avoid driving at night because I hate looking into headlights, and I don't have good night vision. And I don't drink, other than maybe half a beer once every year or two, and then I don't drive until the next day.
Title: Re: The Breathalyzer
Post by: The Latinist on December 31, 2016, 10:36:17 AM
In my state refusal to take a breathalyzer is not a criminal offense, but it results in the suspension of one's license.  The requirement to take a breathalyzer test when asked is clearly spelled out on the form when you apply.  The suspension is a purely administrative matter and does not require any court action.
Title: Re: The Breathalyzer
Post by: Fast Eddie B on December 31, 2016, 11:33:13 AM
Refusal to blow is the same as blowing over the limit.


Each state may be slightly different, but at least in FL it's not the same.

When you apply for a license, you have to agree to "implied consent". If you refuse to consent to a breathalyzer, it's charged under a different law.

The consequences may or may not be the same, but it's in fact charged under a different law.
Title: Re: The Breathalyzer
Post by: paulos23 on December 31, 2016, 11:44:51 AM
My friend got hit by a drunk.  The drunk got out of car and ran home.  And then had a six-pack and was finishing it off when the police caught up with him.  Because he had been drinking they couldn't give him a breathalyzer and couldn't make the DUI stick. 

Not the best way to get out of a DUI, but it worked at the time.

Sent from my XT1080 using Tapatalk

Title: Re: The Breathalyzer
Post by: Harry Black on December 31, 2016, 12:37:00 PM
My friend got hit by a drunk.  The drunk got out of car and ran home.  And then had a six-pack and was finishing it off when the police caught up with him.  Because he had been drinking they couldn't give him a breathalyzer and couldn't make the DUI stick. 

Not the best way to get out of a DUI, but it worked at the time.

Sent from my XT1080 using Tapatalk
They got him for fleeing the scene and the damage caused though right?
Title: Re: The Breathalyzer
Post by: Desert Fox on December 31, 2016, 12:53:43 PM
... 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.

My suggestion: Go to a police station and tell them just that: That you are diabetic, and have heard that the breathalyzer can give a false positive, and ask if they will give you the test now and tell you the result. Best if you walk there, just in case. Then if it's high, you cannot be charged with driving there drunk. Depending on the cops, they might be willing to give you the test.

The first two links you gave are from law firms advertising for people to try to beat DUI charges. I suspect they may be exaggerating the situation in order to get clients. "Arrested for driving drunk? We can help you beat the charges in court by arguing against the tests."

I've never been given the test. But I'm a morning person, and avoid driving at night because I hate looking into headlights, and I don't have good night vision. And I don't drink, other than maybe half a beer once every year or two, and then I don't drive until the next day.

The one where they use the flashlight and expect you to follow it, I would not be surprised if even a 23%failure rate might not be on the low side.  Anything based on the subjectivity of a police officer I suspect is going to have massive problems.
Title: Re: The Breathalyzer
Post by: Friendly Angel on December 31, 2016, 01:40:12 PM
Virtually all cops know about the diabetic thing, but so do a lot of drunks.  If a cop wants to give you a test and you tell him you're diabetic, he might not believe you but at least you'd have a reasonable chance of not getting hauled to jail.
Title: Re: The Breathalyzer
Post by: Fast Eddie B on December 31, 2016, 02:26:45 PM
My friend got hit by a drunk.  The drunk got out of car and ran home.  And then had a six-pack and was finishing it off when the police caught up with him.  Because he had been drinking they couldn't give him a breathalyzer and couldn't make the DUI stick. 

Not the best way to get out of a DUI, but it worked at the time.


They got him for fleeing the scene and the damage caused though right?

Had the same thing happen in Dade County, FL.

Hit and run. Ran the tag and came up with the home address. Knocked on the door and the wife allowed us entry. Arrested the driver who was in his bedroom in bed - I recall he wasn't happy about getting arrested in his house.

Read him Miranda from a card, and asked him if he had had anything to drink since the accident and he said no. Did a formal breathalyzer at the station using the "Indium Crimper" method and he was well above the limit. Charged him with DUI on top of the leaving the scene.

At trial, he testified that he had had more to drunk after he got home. That convinced the judge, who found him not guilty of DUI. But for the leaving the scene he was hit with the same added penalties as if he had been convicted of DUI, so we felt somewhat vindicated.

DUI's are a scourge, and I'm proud of the fact that I had over 100 successful convictions. Maybe it made some small difference.
Title: Re: The Breathalyzer
Post by: arthwollipot on December 31, 2016, 07:07:11 PM
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?

There are a couple of models of breathalyser - the most common one involves blowing into a plastic tube attached to an electronic box, but I've also used one where all you need to do is count to ten out loud in front of the machine.

If an asthmatic can speak, then they can be breathalysed.
Title: Re: The Breathalyzer
Post by: Eternally Learning on December 31, 2016, 07:32:15 PM

The one where they use the flashlight and expect you to follow it, I would not be surprised if even a 23%failure rate might not be on the low side.  Anything based on the subjectivity of a police officer I suspect is going to have massive problems.

Again, I don't know a lot about this test, but I do know that it's not just a binary pass or fail overall.  There are specific clues they have to look for and a threshold for the amount of clues they have to find to be able to state that the subject failed. They also have to articulate these clues in court for what it's worth.  I often hear about troopers allowing rides to pick people up who are borderline as they want to be able to stand by the results in court and thus want a clear result.  Also, I often hear them characterize failures as the subject not even being able to look at the light at all due to a complete lack of coordination.  So while in controlled circumstances, a borderline DUI subject may be likely to confound the test in one direction or another,  in my experience the troopers I work with focus so little of the borderline people that I feel pretty confident their stats are much more reliable.
Title: Re: The Breathalyzer
Post by: Desert Fox on December 31, 2016, 07:43:37 PM
Again, I don't know a lot about this test, but I do know that it's not just a binary pass or fail overall.  There are specific clues they have to look for and a threshold for the amount of clues they have to find to be able to state that the subject failed. They also have to articulate these clues in court for what it's worth.  I often hear about troopers allowing rides to pick people up who are borderline as they want to be able to stand by the results in court and thus want a clear result.  Also, I often hear them characterize failures as the subject not even being able to look at the light at all due to a complete lack of coordination.  So while in controlled circumstances, a borderline DUI subject may be likely to confound the test in one direction or another,  in my experience the troopers I work with focus so little of the borderline people that I feel pretty confident their stats are much more reliable.

I like the way some other countries seem to do it. . . .Breathalyzer followed by a blood test if you fail.
Even if there are cases of labs faking results,  I truth them more. In addition, make it so a person can request to get an extra sample taken and it gets sent to an independent lab. Yes, I accept that it would almost have to be at the defendant's expense.

I know I am kind of in a weird position with not drinking at all and most people have been drinking and it is an issue of if they are over the legal limit or not. The legal limit also is an arbitrary number which was judged to make that person a danger on the road.
Title: Re: The Breathalyzer
Post by: Eternally Learning on December 31, 2016, 07:44:42 PM
Found a video comparing someone sober with someone intoxicated just for reference.  In looking at it, the difference seems clear.  Not sure if flashlights are used for a different test or just at night though.

https://youtu.be/EZv86N8Am2A
Title: Re: The Breathalyzer
Post by: Desert Fox on December 31, 2016, 07:52:36 PM
How about testing that with somebody who has issues already with eye tracking?

Edit: This is from a defense lawyers perspective but still gives a number of issues
http://www.gustitislaw.com/bryan-college-station-dwi/attacking-the-horizontal-gaze-nystagmus-hgn-test/
However, nystagmus can be caused by problems in an individual’s inner ear labyrinth. In fact, irrigating the ears with warm water or cold water…is a source of error. Physiological problems such as certain kinds of diseases may also result in gaze nystagmus. Influenza, streptococcus infections, vertigo, measles, syphilis, arteriosclerosis, muscular dystrophy, multiple sclerosis, Korsakoff’s Syndrome, brain hemorrhage, epilepsy, and other psychogenic disorders all have been shown to cause nystagmus. Furthermore, conditions such as hypertension, motion sickness, sunstroke, eyestrain, eye muscle fatigue, glaucoma, and changes in atmospheric pressure may result in gaze nystagmus. The consumption of common substances such as caffeine, nicotine, or aspirin also lead to nystagmus almost identical to that caused by alcohol consumption.
Title: Re: The Breathalyzer
Post by: Eternally Learning on December 31, 2016, 08:25:27 PM
Again, that's why I think multiple layers of tests is a good idea.  What are the odds someone hasn't been drinking, but:

1. Gets pulled over for something else or driving erratically.
2. Gives the officer a reason to suspect they are intoxicated.
3. Has a condition that causes them to fail HGN.
4. Is unable to perform a walk and turn.
5. And gives a false positive on a breathalyzer test.
Title: Re: The Breathalyzer
Post by: Desert Fox on January 01, 2017, 12:18:56 AM
Again, that's why I think multiple layers of tests is a good idea.  What are the odds someone hasn't been drinking, but:

1. Gets pulled over for something else or driving erratically.
2. Gives the officer a reason to suspect they are intoxicated.
3. Has a condition that causes them to fail HGN.
4. Is unable to perform a walk and turn.
5. And gives a false positive on a breathalyzer test.

I guess that is kind of hard to argue with but I still think the breathalyzer is the most important component.
Title: Re: The Breathalyzer
Post by: daniel1948 on January 01, 2017, 09:20:44 AM
Again, that's why I think multiple layers of tests is a good idea.  What are the odds someone hasn't been drinking, but:

1. Gets pulled over for something else or driving erratically.
2. Gives the officer a reason to suspect they are intoxicated.
3. Has a condition that causes them to fail HGN.
4. Is unable to perform a walk and turn.
5. And gives a false positive on a breathalyzer test.

I guess that is kind of hard to argue with but I still think the breathalyzer is the most important component.

The breathalyzer is only the most important component if the cop gives it undue weight after the driver explains the specific medical condition that creates a false positive. If you were pulled over for erratic driving, your driving will be the most important component. If it's a random stop without specific cause, or a checkpoint where everyone is being stopped, then the absence of alcohol on your breath will likely trump a breathalyzer positive once you explain your medical condition, unless the cop is a jerk.
Title: Re: The Breathalyzer
Post by: Steinberi24 on November 13, 2018, 12:26:48 AM
Nice post! My friend just told me about a breathalyser that we can keep with ourselves and check before driving. I was once caught and got pressed DUI charges. I took help of a very good DUI attorney Los Angeles (https://bit.ly/IqT6zt) and got my punishment reduced.

Administrator Comment Obvious spam is obvious.
Title: Re: The Breathalyzer
Post by: Noisy Rhysling on November 13, 2018, 07:20:45 AM
Nice post! My friend just told me about a breathalyser that we can keep with ourselves and check before driving. I was once caught and got pressed DUI charges. I took help of a very good DUI attorney Los Angeles (https://bit.ly/IqT6zt) and got my punishment reduced.
Was it just unfortunate that you mirrors a spammer's style?
Title: Re: The Breathalyzer
Post by: Noisy Rhysling on November 13, 2018, 07:22:33 AM
Again, that's why I think multiple layers of tests is a good idea.  What are the odds someone hasn't been drinking, but:

1. Gets pulled over for something else or driving erratically.
2. Gives the officer a reason to suspect they are intoxicated.
3. Has a condition that causes them to fail HGN.
4. Is unable to perform a walk and turn.
5. And gives a false positive on a breathalyzer test.

I guess that is kind of hard to argue with but I still think the breathalyzer is the most important component.

The breathalyzer is only the most important component if the cop gives it undue weight after the driver explains the specific medical condition that creates a false positive. If you were pulled over for erratic driving, your driving will be the most important component. If it's a random stop without specific cause, or a checkpoint where everyone is being stopped, then the absence of alcohol on your breath will likely trump a breathalyzer positive once you explain your medical condition, unless the cop is a jerk.
The advent of video cameras has reduced the reliance on breathalyzers, they mainly put the cherry on top these days.
Title: Re: The Breathalyzer
Post by: The Latinist on November 14, 2018, 05:13:39 PM
Don’t they usually do blood tests after arrest?
Title: Re: The Breathalyzer
Post by: 2397 on November 14, 2018, 07:01:10 PM
Don’t they usually do blood tests after arrest?

That's what I thought, that the breathalyzer is just a preliminary test and not admissible in court.
Title: Re: The Breathalyzer
Post by: Fast Eddie B on November 14, 2018, 07:08:57 PM
In Florida when I worked there, the “Breathalyzer” we used at the station utilized the “Indium Crimper” method. The test subject blew into a machine, which collected his or her breath in a metal tube crimped into three samples. One went to the lab, one was available to the defendant if they requested, I think the third was a backup. The results were definitely usable in court.

Blood was rarely drawn, usually in serious accidents with injuries.

A portable Breathalyzer could only be utilized to confirm probable cause for the arrest. I don’t recall ever being issued one.

Edited to add: scrolling back I seem to have mentioned this already.
Title: Re: The Breathalyzer
Post by: Eternally Learning on November 15, 2018, 12:13:31 AM
Don’t they usually do blood tests after arrest?

In my state, with my agency they usually only do a blood test if someone has been transported to the hospital.  They are able to refuse that, just like the breathalyzer, unless there was a fatality involved in the accident in which case they have to submit to a blood test if they were the at fault driver.

Don’t they usually do blood tests after arrest?

That's what I thought, that the breathalyzer is just a preliminary test and not admissible in court.

There's a portable breathalyzer test which is usually administered roadside and is inadmissible (I don't believe it's probable cause for an arrest on its own either) and the intoximeter at the station which is definitely admissible.  Police don't need any of those test results to arrest someone for DUI though (and indeed, a driver can refuse all sobriety tests if they choose) as they can rely on other clues such as how they were driving, any odor of alcohol, any open containers in the vehicle, statements by the driver, and so on.
Title: Re: The Breathalyzer
Post by: Calinthalus on November 15, 2018, 07:59:17 AM
Most police can't draw blood.  You have to have a medical license to draw blood (usually a nurse or a phlebotomist).  There are officers who are trained as phlebotomists who can draw blood, but that's usually only in larger cities.


Remember that nurse in Utah that was arrested for not allowing an officer to draw blood? The patient was unconscious and since she couldn't get consent, she refused to let him draw the blood (as per hospital policy and the law).  The cop physically dragged her outside in cuffs for blocking him.  She was later awarded half a mil for her troubles.


Anyway, you can always refuse any medical procedure...unless you are under arrest.  Even if you are badly injured, and they draw blood for type and cross; that blood cannot be used for any other purposes without your consent.  If they have enough evidence to arrest, then they can arrest you and then draw the blood to be used in court.  However, if it is later revealed that they didn't have enough evidence without the blood, that can be thrown out.
Title: Re: The Breathalyzer
Post by: Captain Video on November 15, 2018, 10:47:17 AM
https://reason.com/blog/2018/11/14/nj-drunken-driving-cases-may-be-thrown?fbclid=IwAR16PWpnApAG_oGVjzfurRjhxpFnLYDcQREv6BsxYwc3feqlOKCf7B3pC40

Quote
The New Jersey Supreme Court ruled on Tuesday that breathalyzer evidence from more than 20,000 drunk driving cases is inadmissable due to a calibration error.

For seven years, State Police Sgt. Marc Dennis was in charge of calibrating Alcotest machines in five counties. The machines were used to test drivers' blood alcohol content. In 2016, Dennis was charged with falsifying records because he did not use a thermometer to check that the control solution used for calibration was at body temperature.

The machines the cops use may be different but for years I watched them calibrate the machines in bars that I worked at (employees were required to hand in their keys then blow under the limit if they wanted them returned) The process seemed to take a long time while the guy used a glass bong like device to blow air through a clear liquid into the machine which I assumed was alcohol. I also remember him checking the temp of the liquid. I'm curious why temperature maters to the calibration.

 If the calibration was off something as light as a menthol cigarette would set it off.  For years I watched strippers try to fool that thing, some of them were able to pull it off with assorted tricks.
Title: Re: The Breathalyzer
Post by: Calinthalus on November 15, 2018, 10:53:32 AM
I know that the evaporation of alcohol (like other liquids) is effected by temperatures.  I know it boils at a lower temperature than water, for instance (that's one way to make non-alcoholic beer) and it condenses at a different temperature (making whisky possible).  It might have something to do with that.
Title: Re: The Breathalyzer
Post by: Calinthalus on November 15, 2018, 10:57:10 AM
Also, sorry, when using a refractometer to check specific gravity you have to adjust for temperature as well.  It has something to do with the refraction of light through the liquid (checking for amount of sugar in the liquid) is different based on temperature of the liquid.
Title: Re: The Breathalyzer
Post by: arthwollipot on November 15, 2018, 06:31:15 PM
I do love the word "phlebotomist", but "blood nurse" sounds more metal.
Title: Re: The Breathalyzer
Post by: The Latinist on November 15, 2018, 07:24:17 PM
more metal than ‘vein cutter’?
Title: Re: The Breathalyzer
Post by: Desert Fox on November 18, 2018, 11:14:07 AM
I listen to the Truth and Justice podcast

The host was on a jury with a DWI case - He was an alternate.
A woman was pulled over for DWI and she took the breathalyzer.
She had some alcohol in her system but she was a fair amount below the legal limit.
She was still charged ith DWI.

The host was dismissed as an alternate.
He found out later that she had been convicted.
Apparently if a cop just says you are guilty, you are guilty?
Title: Re: The Breathalyzer
Post by: Fast Eddie B on November 18, 2018, 01:01:07 PM

The host was dismissed as an alternate.
He found out later that she had been convicted.
Apparently if a cop just says you are guilty, you are guilty?

Or there’s more to the story than presented here.

Generally, if we got readings below the limit, the DUI charge was dropped. Enough good cases to make that you don’t waste time and resources on the marginal ones. Other charges, such as whatever triggered the stop in the first place, may still stand.

Depending on the state, it may not be enough to prove the driver was impaired - laws often specify that it’s illegal to drive while impaired by a specific substance, so that’s what the state needs to prove beyond a reasonable doubt.
Title: Re: The Breathalyzer
Post by: Eternally Learning on November 18, 2018, 01:32:49 PM
The only times I've seen that is when there is evidence they are intoxicated by something else as well. I think they have to blow double 00s to have a Drug Recognition Expert evaluate them, but if there were drugs or paraphernalia in the vehicle, and the circumstances prior to arrest were bad enough (like, perhaps multiple other drivers reported them for their driving and they also crashed their car), then they have plenty of reason to say she was intoxicated.
Title: Re: The Breathalyzer
Post by: Fast Eddie B on November 18, 2018, 01:58:35 PM
Pretty sure it was not against the law to simply drive while intoxicated. You had to show intoxicated by a certain specified substance covered by statute.

I had a case where the driver was driving horribly, then refused to stop and we followed him all the way those house. Turned out it was some sort of diabetic or hypoglycemic episode, not drugs or alcohol.
Title: Re: The Breathalyzer
Post by: Tassie Dave on November 18, 2018, 02:23:51 PM
Pretty sure it was not against the law to simply drive while intoxicated. You had to show intoxicated by a certain specified substance covered by statute.

I had a case where the driver was driving horribly, then refused to stop and we followed him all the way those house. Turned out it was some sort of diabetic or hypoglycemic episode, not drugs or alcohol.

That's not intoxicated  ??? It's a medical episode.
I'm pretty sure it is against the law to drive while intoxicated (drug or alcohol)

The case, mentioned above, of the woman below the limit yet still convicted, we don't have enough information to judge whether she was unfairly treated.
There are multiple reasons why you can be convicted for having "any" alcohol in your system.

i.e. serial DUI offender with a "zero blood alcohol limit" as a condition of getting their license back

Title: Re: The Breathalyzer
Post by: Fast Eddie B on November 18, 2018, 03:38:43 PM

I'm pretty sure it is against the law to drive while intoxicated (drug or alcohol)


Of course. I did not mean to imply it wasn’t. 

Only there was no “general, non-specific intoxication” statute in FL when I worked there. I may look up to see what the language is now.

But again, different states, different laws.
Title: Re: The Breathalyzer
Post by: The Latinist on November 18, 2018, 03:57:39 PM
In CT the law prohibits operating while under the influence of “intoxicating liquor” or “any drug” or with an elevated blood alcohol level. I believe that under this law a person may be convicted of operating under the influence based on testimony establishing things like the odor of alcohol on the breath, that the person was seen drinking, the presence of drugs and drug paraphernalia, an open container of alcohol, etc., combined with unsafe operation even in the absence of chemical test results.  Of course by far the most common kind of charge is one resulting from failed chemical tests, but I think they left the alternative route for use in extreme cases if for some reason a chemical test could not be obtained within the required period.

But IANAL.
Title: Re: The Breathalyzer
Post by: SkeptiQueer on November 18, 2018, 04:53:25 PM
Missouri law:

Quote
577.010.  Driving while intoxicated — sentencing restrictions. — 1.  A person commits the offense of driving while intoxicated if he or she operates a vehicle while in an intoxicated condition.


 (13)  “Intoxicated” or “intoxicated condition”, when a person is under the influence of alcohol, a controlled substance, or drug, or any combination thereof;

Quote
577.012.  Driving with excessive blood alcohol content — sentencing restrictions. — 1.  A person commits the offense of driving with excessive blood alcohol content if such person operates:

  (1)  A vehicle while having eight-hundredths of one percent or more by weight of alcohol in his or her blood; or

  (2)  A commercial motor vehicle while having four one-hundredths of one percent or more by weight of alcohol in his or her blood.

Excessive BAC (.08 for non-commercial, .04 for commercial) is a separate offense entirely from DWI. You can be DWI if you're well under the limit.
Title: Re: The Breathalyzer
Post by: moj on November 19, 2018, 10:09:44 AM
In DC it's zero tolerance so even if you are at .01 if the cop thinks you are impaired, they can charge you with DUI. I know people who have gotten DUI for smoking weed and have no alcohol and weed is legal in DC. Cops have an incredible amount of leeway when deciding on whether to charge someone with a DUI or not.

This may get long but have a story very relevant to this but maybe TLDR for many. Here goes. I got a DUI in 2003 when living in a small college town in WV. It was really dumb, I didn't normal drive when drinking and have not picked up the habit since. We uber/lyft if we drink and very much in favor of strict DUI laws but think there is room to improve the process. For me it was 2am had been at party but remembered I left my car parked in town and not at home like normal. It was parked two blocks from my house but in spot that reserved for the farmers market and would get towed at 4am so I drove it the 2 blocks home. At a stop sign did not use a turn signal but didn't see anyone on the road. I missed that there was a cop in a near by ally or somewhere? He got his lights on as I pulled into my driveway. I was home but failed the field test. I was arrested, went to jail(holding cell) then when at court plead guilty. I lost my licences for 6 months, had a fine and do more jail but only totally 24 hours. It sucked, but in the grand scheme of things not at all the worst part. And had to take DUI classes. Once I lost my licences then lost my job because that was the only way to get to work. The only work I could find in walking distances was washing dishes and even working at 2 restaurants washing dishes was not able to make enough money to get by. I become homeless or more like couch surfing for awhile but ended up having to move back in with my parents in northern VA. Once back in VA was able to get a VA drivers license because back then states didn't really communicate these things. I went back to school while working, got my shit together moved to DC and was able to get a DL no problem. I forgot all about the WV DUI classes but they did not forget about me. In September of this year went to renew my DC drivers licences and can't because WV has a hold on it.
  To get it back need to complete the DUI classes. In DC the amount of hours you need to complete is higher than WV, so now instead of 12 hours of classes it's 24 and can only take them 2 hours at a time. Every Thursday for 3 months I have go the these classes with about 30 other people and talk about drinking. Its not like AA, it's just a program run by the city, it also cost 45$ per class so will be about 1000 once done. After that is complete I have to snail mail 125$ money order to the WV health and human services. Not sure how I will know when they get it, but that's the only payment they accept, not sure why I am paying them? After they get paid and check the box, I then have to go to the WV DMV pay them an admin fee so they can check off it off there box. Then I can go back to the DC DMV and get my licenses but will probably have to take the written and maybe driving test again.
      What I've learned from the classes? A lot of black and brown people get charged with DUI's that have not been drinking(ETA some for weed, one for an empty bottle under the passenger seat, I think most where racially targeted and charged with anything that might stick). True or not a lot of people claim you can beat the breathalyzer by sucking on a handful of dirty pennies(eww). A lot of people also say it's better to refuse the breathalyzer if you think you will blow high. Yes it's an extra charge that takes you straight to jail for a short term, but maybe better than a high score long term. Seems risky to me, but there was a consensuses in the room that that was the move?
  While I do take full responsibility for my actions, it was totally stupid on my part. I should have fixed this years and years ago, it's also kind of frustrating being in class with many people who got a DUI now, in 2018 and are still driving. In a city like DC with decent public transportation and tons of lyft/uber/cabs am shocked that it seems like most of them are getting less of a punishment than me. They are still driving and because I missed classes almost 16 years ago am not and won't be able to drive legally till early 2019 at the earliest. Thankful that we do live near metro and have a wife who can drive. 
Title: Re: The Breathalyzer
Post by: seamas on November 19, 2018, 01:21:15 PM
Several years ago I was having a conversation with a judge who is a friend of a friend.
I think we were talking about search and seizure, and he said pretty adamantly that of you ever get pulled over never blow.

Well about two years ago I got pulled over. I spent the early part of the night playing guitar with a friend, had a beer,  then on my way home stopped off at a growler shop and bought a growler of beer and had a glass. So over the course of 2.5 hours I had two relatively mild beers, so wasn't inebriated.

The State Trooper was following me up a hill, basically tailgating me--I couldn't tell it was a cop because his lights we so bright. Once I caught a good look at his car I made sure to be exactly the speed limit. He continued to follow me for another 1/4 mile before pulling me over.

The reason he was tailing me in the first place: Broken tag light (something half the cars don't even have)
He then got me going 45 in a 30. Around here most cops wouldn't pull you over for that, but I was pretty much going 45 because he was tailgating me.

Anyway, he asked where I was going, where I came from, had I had anything to drink. Told him I just came from the growler shop and had a beer.
So he decides to do the sobriety test. I notice that he had another trooper in the car with him.

I go through the field sobriety test, and its not a problem for me at all. I figure I am done.
He requests a breathalyzer. I refuse.
He asked why, I told him a judge told me to never blow. At this point the other Trooper comes forward, tells me he is training the other trooper and informed me of the laws regarding the field brethalyzer.
The results of the field breathalyzer is NOT admissible in court, however if they decide suspicion of me being intoxicated they will take me into jail where I would be administered a chemical blood analysis, which IS admissible. It is also a violation to refuse a roadside brethalyzer.
He decides to have me redo the field test (checks eyes, balance, etc), and tells me to go back to my car. 10 minutes later he gives me three summons: broken taglight (which I can take care of in 24 hours with no fine), a speeding ticket and the refusal to blow ticket. I was free to go.

The whole think took about an hour so my wife was a little pissed that I was so much later than I thought.
The next morning, I looked up the penalty for refusal to blow. I could lose my license for a year.
Time to lawyer up
The next day I spoke to my friend (who is also my boss) about his friend the judge who gave me the advise. I told my friend/boss/ guy I play guitar with the story.
Luckily  he knows a good number of people in the area and got me in touch with a lawyer.
I spoke to the lawyer on the phone, he was a bit surprised that the trooper gave me that summons and let me drive home. He decided to squash the fly with a hammer and gave me the phone number of his father, who is also a lawyer.
Now, this guy was something else. about 79 years old, a decidedly humble home office, but he is a retired brigadier general in the Army reserves, had numerous photos of himself as a young man in vietnam and other places with people like Westmorland, etc, later he was Police Chief of a different town in the county for about 25 years and then became a lawyer in his 50s.
Needless to say he is a guy  that the judges in the area have enormous respect for.
He thought the ticket for the tag light was "complete bullshit" and was well aware of cops tailgating people to see if they accelerate. He said what probably happened was that since the senior trooper was training the newbie, he was being extra thorough. But them letting me go should have meant NOT giving me a violation for refusal.
He managed to look up case law, saw another case in the state district just like mine that was dismissed, so managed the same for me on precedent. No penalties, no fines, no suspended license.

Obviously, this situation was decided this way because of jurisdiction, so it could be very different in another state--or even in a different district.

Ever since then, I am always within a mile or two of the mph and I REALLY limit my drinking if I drive.

I appologise for the long post.
Title: Re: The Breathalyzer
Post by: 2397 on November 19, 2018, 01:42:15 PM
In Norway and several other European countries, the blood alcohol limit is 0.02%. Which as far as I can tell is one drink.
Title: Re: The Breathalyzer
Post by: The Latinist on November 19, 2018, 02:01:34 PM
Connecticut has implied consent laws. Refusal to submit to a breath, blood, urine analysis will result in suspension of  license for 45 days and imposition of an ignition interlock device (1 year for first offense, 2 years for second offense, and 3 years for third offense). Drivers subject to ignition interlock device may not drive any vehicle not equipped with such a device.  The penalties are as great or greater than for failing the test.
Title: Re: The Breathalyzer
Post by: arthwollipot on November 19, 2018, 04:14:16 PM
"Growler"?
Title: Re: The Breathalyzer
Post by: seamas on November 19, 2018, 04:54:19 PM
"Growler"?

A 64 oz container of draft beer.
Title: Re: The Breathalyzer
Post by: arthwollipot on November 19, 2018, 05:55:26 PM
"Growler"?

A 64 oz container of draft beer.

How much is that in real units?

(click to show/hide)
Title: Re: The Breathalyzer
Post by: Tassie Dave on November 20, 2018, 01:11:08 AM
"Growler"?

A 64 oz container of draft beer.

How much is that in real units?

(click to show/hide)

That's 4 schooners and a foursie  ;)
Title: Re: The Breathalyzer
Post by: Friendly Angel on November 20, 2018, 01:31:45 AM
What defines a growler is not so much the volume as the refillable jug from the pub characteristic.
Title: Re: The Breathalyzer
Post by: moj on November 20, 2018, 09:47:43 AM
Connecticut has implied consent laws. Refusal to submit to a breath, blood, urine analysis will result in suspension of  license for 45 days and imposition of an ignition interlock device (1 year for first offense, 2 years for second offense, and 3 years for third offense). Drivers subject to ignition interlock device may not drive any vehicle not equipped with such a device.  The penalties are as great or greater than for failing the test.

That makes a lot more sense to me. I was really surprised so many people in the class said not to blow or didn't and only had to do a night in Jail. I know it varys by location but seems crazy that you can opt out and get less of a punishment than if convicted.
Title: Re: The Breathalyzer
Post by: Calinthalus on November 20, 2018, 09:49:53 AM
I don't know.  I don't like the idea that you can refuse a request and go to jail for that refusal.  I mean, if there's a warrant signed by a judge then fine...but otherwise it strikes me as a bad idea.
Title: Re: The Breathalyzer
Post by: moj on November 20, 2018, 11:10:19 AM
I don't know.  I don't like the idea that you can refuse a request and go to jail for that refusal.  I mean, if there's a warrant signed by a judge then fine...but otherwise it strikes me as a bad idea.

Whats to stop every drunk pulled over from just refusing the test then? There are different charges based on BAC but need to be tested to figure that out.
Title: Re: The Breathalyzer
Post by: The Latinist on November 20, 2018, 11:16:33 AM
I don't know.  I don't like the idea that you can refuse a request and go to jail for that refusal.  I mean, if there's a warrant signed by a judge then fine...but otherwise it strikes me as a bad idea.

You agree to submit to the test upon request as a condition of licensing. Failure to submit is an administrative offense, resulting in the loss or restriction of driving privileges. One does not receive a prison sentence for it. As I said, license suspensions and ignition interlock devices.
Title: Re: The Breathalyzer
Post by: Calinthalus on November 20, 2018, 12:21:30 PM
I read that wrong.  I read the 45 days as days in jail, not days with license suspended.


Still not sure I agree with it.  If an officer has enough probable cause (via driving erratically or failing non-invasive field sobriety tests) then there should be a mechanism to get a warrant to force you to do a BAC.  That would be reasonable.
Title: Re: The Breathalyzer
Post by: seamas on November 20, 2018, 12:42:57 PM
What defines a growler is not so much the volume as the refillable jug from the pub characteristic.

True
The name comes from the sound that escapes from the lid (from whatever old time container was used years ago.

Most of the places I've purchased them from (mostly all along the Northeast USA) refer 64 as a growler and 32 oz as a half growler or a "howler".
Then there are "crowlers" which are cans sealed right at the bar.

Title: Re: The Breathalyzer
Post by: seamas on November 20, 2018, 12:47:23 PM
I don't know.  I don't like the idea that you can refuse a request and go to jail for that refusal.  I mean, if there's a warrant signed by a judge then fine...but otherwise it strikes me as a bad idea.

Whats to stop every drunk pulled over from just refusing the test then? There are different charges based on BAC but need to be tested to figure that out.

The cop can just arrest you.
He does not need the results of the breathalyzer (which are wildly inaccurate) to take you in. That one you breathe into is often not admissible--but refusing to blow can and often is a violation added on.
If you fail the field sobriety test, he or she will just arrest you, and administer a more accurate chemical test at the police station.
Title: Re: The Breathalyzer
Post by: The Latinist on November 20, 2018, 01:20:45 PM
I read that wrong.  I read the 45 days as days in jail, not days with license suspended.


Still not sure I agree with it.  If an officer has enough probable cause (via driving erratically or failing non-invasive field sobriety tests) then there should be a mechanism to get a warrant to force you to do a BAC.  That would be reasonable.

Driving is not a right. If you choose to drive, you’ve agreed to the regulations that come along with it, including being subject to breathalyzer at any time. Anyone with a Connecticut license has signed a paper agreeing to submit to one upon request, and failure to do so is a violation of the terms under which the license was issued. Hence, you lose it.

And let me be clear: the police still need a warrant to compel a chemical test. You have a right to refuse, and you won’t be criminally charged for refusal.  You just don’t get to keep your license if you don’t comply with its terms.
Title: Re: The Breathalyzer
Post by: arthwollipot on November 21, 2018, 04:20:34 PM
"Growler"?

A 64 oz container of draft beer.

How much is that in real units?

(click to show/hide)

That's 4 schooners and a foursie  ;)

Bonza!