BREATH & BLOOD TESTS ATTORNEY IN KANSAS CITY, MISSOURI
BREATH TESTING 101: The Basic Concepts of the Intoxilyzer 5000 and the BAC Datamaster, the Breath Machines Most Commonly Used & The Missouri Department of Health Breath Testing Regulations
For a good introductory discussion of breath testing in DUI / DWI cases in states across the United States, see William C. Head's article, Breath Testing Information—What Every Citizen MUST Know.
Missouri Implied Consent Law
In Missouri, every driver who operates a motor vehicle in the State of Missouri impliedly "consents" to giving a blood, breath, saliva or urine sample to determine the alcohol content of their blood if arrested upon reasonable grounds to believethey were driving a motor vehicle while in an intoxicated or drugged condition.
The standard used is 0.08% BAC for adults over the age of 21; 0.02% for people Under 21. Under the law, you are presumed to know your rights concerning such testing and give consent to such tests for the privilege of driving.
Missouri Breath Testing
While a driver might occasionally be asked to submit to a blood or urine test in a few cases, the most common chemical test requested of a driver in Missouri DUI / DWI / BAC cases is a chemical breath test.
The most common breath machines in Missouri are the Intoxilyzer® 5000 (America's most widely used breath test machine), and the BAC Datamaster® (America's second most common breath machine). These machines are commonly referred to by the general public as a “breathalyzer.” The BAC Datamaster is the most common breath testing machine in Missouri, followed by the Intoxilyzer 5000.
Neither of these breath testing machines is "state of the art." There are breath testing machines available that are far more reliable, such as the Draeger Alcotest 7110, but of course, the State of Missouri cannot be bothered with the higher expense of purchasing the more reliable breath machines, despite the fact that most other states are now decommissioning the Intoxilyzer 5000 and the BAC Datamaster due to their unreliability.
Out of the box, the manufacturers won't guarantee that these breath machines are fit for the particular purpose of breath testing! Instills a lot of confidence when you are stepping up to blow in Missouri, and your job and your freedom depends on an accurate breath test, don't they?
CMI, the manufacturer of the Intoxilyzer 5000's Statement of Warranty reads:
CMI, Inc. warrants that each new product will be free from defects in material and workmanship, under normal use and service, for a period of one year from the date of invoice to the initial purchaser. CMIs obligation is limited to repairing or replacing, as CMI may elect, any part or parts of such product which CMI determines to be defective in material or workmanship.
Warranty repairs will be performed only at authorized factory service centers. Any part or product considered to be covered by the conditions of this warranty shall be returned, freight pre-paid, to an authorized service center. The repaired or replacement part or product will be returned from CMI pre-paid. Repaired products are warranted for 90 days from the date of repair, subject to the same limitations at this warranty. Warranty coverage extends only to the original purchaser and does not include normal wear and tear, unusual abuse, or use of the product for other than its intended purpose. This warranty is voided if the product is adversely affected by attaching any feature or device to it, or is in any way tampered with or modified without express written permission from CMI.
There are no warranties expressed or implied, including but not limited to, any implied warranties of merchantability or fitness for a particular purpose. In no event shall CMI be liable for any loss of profits or any indirect or consequential damages arising out of any such defect in material or workmanship. As a further limit on warranty and as an express warning, the user should be aware. ~ harmful personal contact may be made with seller's product use in automobiles in the event of violent maneuvers, collision, or other circumstance, even though said products are installed according to instruction. CMI specifically disclaims any liability or injury caused by the products in all such circumstances.
The Intoxilyzer 5000
The Intoxilyzer 5000 is a common breath testing device in Missouri DUI / DWI cases manufactured by CMI, Inc. This breath machine utilizes infrared light to measure the methyl compound group in breath, and CMI, Inc. claims the machine only measures ethanol in this group, i.e.—consumed alcohol.
CMI claims that the Intoxilyzer 5000 is 95% accurate in measuring alcohol, but Courts around the country have found otherwise: See State v. Burling, 224 Neb. 725, 400 N.W.2d 872 (1987) where the Nebraska Supreme Court held that the Intoxilyzer breath testing device was only 52.38% accurate, rather than the manufacturer's claim of 95%. CMI also does not give warranty for the breath machine for any particular purpose, as discussed above. In other words, they do not warranty accurate breath testing results!
The BAC Datamaster
The BAC Datamaster is a breath-testing machine produced by National Patent Analytical Systems, Inc. This machine is popular due to its low purchase price. The BAC Datamaster, like the Intoxilyzer 5000, also utilizes infrared technology.
The BAC Datamaster has a feature available which is utilized on similar machines in other states, but which the State of Missouri has not bothered to order: this is a mechanism for inserting a vial to capture and preserve a second breath sample for subsequent analysis, either for double-checking or for defense testing.
We as the citizens of Missouri wouldn't want those pesky defense lawyers to be able to test a second sample to refute mistakes in the State of Missouri's first and often only breath test, would we? The BAC Datamaster is also capable of capturing data and of detailed record-keeping within the machine, but this, of course, is also a feature the State of Missouri, unlike many other states (those not choosing to discontinue use of this machine altogether for a more reliable one), chooses not to utilize.
Why do you suppose that Missouri law enforcement does not want the machine to keep a record of the data on all breath tests (even though it is perfectly capable), including all malfunctions? I bet you do not have to ponder the answer to that question too long.
It is also interesting to note (although sad if your breath test was conducted on a BAC Datamaster) that the manufacturer of the BAC Datamaster, National Patent, has discontinued making this breath testing machine, and now focuses on the production of cable cutters.
The company no longer makes repairs, and repairs and replacements are now conducted in each state that still inexplicably chooses to use this breath machine by often untrained staff.
How Do Missouri DUI / DWI Breath Machines Work?
Breath testing machines used in Missouri DUI / DWI cases, such as the Intoxilyzer 5000 and the BAC Datamaster do not attempt to measure a person's “breath alcohol content,” but they instead attempt to approximate “blood alcohol level” by taking the breath result as it goes through and multiplying the result times 2100 to 1.
In general, the breath machines used in Missouri DUI / DWI cases rely on spectroscopy and identifying and quantifying the alcohol compounds in breath using infrared light. All breath testing machines in Missouri DUI / DWI cases utilize infrared absorption or what is called “infrared spectroscopy.”
A simple explanation of this concept is that the breath machine uses infrared light to measure the contents of the breath blown into the tube, and how much infrared light gets “absorbed” in the breath chamber of the breath testing device.
This all sounds complicated, but it really is not. The principle of infrared spectroscopy is based on the scientific notion that every substance either absorbs or reflects light at different wavelengths.
When a person breathes into a breath machine, a sample of the breath is taken into a cylinder, which “measures” the contents of the breath sample with infrared light from a bulb inside of the breath capture cylinder.
At the other end of the cylinder in every breath machines are filter wheels (the exact configuration and number of filters varies from machine to machine but the principles are the same with each breath machine) which allegedly remove contaminants from the breath sample.
While the filter wheels are allegedly removing any contaminants from the breath sample, the infrared light shining on the breath sample causes any alcohol molecules in the sample to absorb light at particular infrared frequencies which the machine detects and measures, before giving out a ticket indicating the results of the breath test.
The light that is absorbed by a sample is related or associated with the concentration of a substance in a sample. The difference between the light that goes in and that light that comes out of a sample measures the absorption of a substance in the sample.
Infrared light is not visible to the naked eye. Infrared light, which the breath machine uses to allegedly measure breath samples for alcohol, runs in the range from 2 microns to 16 microns.
The Intoxilyzer 5000 contains a series of filters, which only allow three wavelengths of infrared light to pass through them. All of these are in the 3.3 to 4.0 micron range. The three wavelengths that the Intoxilyzer 5000 allows in are: 3.39 microns, 3.48 microns, and 3.95 microns.
The Intoxilyzer 5000 does not test based upon full spectrum analysis. A full spectrum analysis is the “fingerprint” of an unknown substance. A full spectrum analysis is where the unknown substance, (the unknown substance in this instance is the driver's breath), is exposed to the full spectrum of infrared light—the full range of 2 microns to 16 microns.
Full-spectrum analysis generates a graph that shows the various wavelengths at which infrared light was absorbed by the unknown substance. Because breath machines such as the Intoxilyzer 5000 and the BAC Datamaster are woefully inadequate in that they only measure three wavelengths of the full spectrum of infrared light, they often mistake some other compound for what it believes to be ethanol (alcohol) that the driver has consumed.
Determining What Substance Is in The Breath Sample
Perhaps the most common attack on the validity of breath testing in Missouri DUI / DWI cases, is the inability of all breath testing devices to differentiate between Ethanol (consumed alcohol) and many other similar substances commonly encountered in society.
Contrary to what the State of Missouri would have you believe, there are many substances commonly encountered in normal day-to-day life that a breath testing machine such as the Intoxilyzer 5000 or the BAC Datamaster will falsely read as alcohol consumed by the driver.
Infrared light at the three specific wavelengths discussed passes through the “breath chamber” where some of the light may be absorbed. The breath machine determines how much of that infrared light made it through the chamber.
Breath testing machines such as the Intoxilyzer 5000 and the BAC Datamaster assume that everything that absorbs infrared light at these three wavelengths in alcohol the driver consumed, even though there are many things that absorb light at these three wavelengths (such as acetone, toluene, or common “paint fumes” to name two of dozens of examples).
The breath machines also have an interferant detector which is designed to allegedly detect the presence of other things that absorb infrared light at these same wavelengths, (but I bet you can guess how well it works).
When a breath testing device in a Missouri DUI / DWI case such as the Intoxilyzer 5000 or the BAC Datamaster detects an interferant other than ethanol (alcohol you have consumed) on your breath, there are various messages the machines are designed to print out. As discussed previously, the two main breath testing machines used by Missouri only test for infrared absorption at three specific wavelengths (while other, better breath testing devices utilized in other states test on several other wavelengths besides these three).
You see, it is basic chemistry, but the breath testing devices used in Missouri flunk the course. Alcohol is a member of the methyl compound group. The methyl group has a chemical component of one atom of carbon (c) and three atoms of hydrogen (H). The hydrogen and carbon bonds of the methyl group absorb energy at a range of 3.35 to 3.52 microns. A micron is a measurement of length. This is why the breath testing machines utilized in Missouri DUI / DWI cases measure this infrared range, looking for alcohol.
However, there are numerous other methyl compounds, similar to alcohol, found is the 3.35 to 3.52 micron range: and the breath machines utilized in Missouri DUI / DWI cases, cannot tell the difference, and will often treat them as "alcohol" if they are present on your breath.
In short, lots of items commonly encountered in day-to-day life absorb infrared light at these same three wavelengths in addition to ethanol (consumed alcohol): acetone, toluene, menthol, and hundreds of other chemicals and compounds are among these items.
These two main breath testing machines used in Missouri DUI / DWI cases assume that everything that absorbs infrared light at these three wavelengths is alcohol.
The interferant detector on these machines is allegedly designed to eliminate these problems, but I wouldn't recommend this interferant detector letting you rest easy if you happen to be a painter for a living, and you are asked to take a breath test in Missouri.
The interferant detector is designed to check the ratios at which infrared light is absorbed for any item present in the breath sample, at each of the three wavelengths being tested, and it allegedly compares that to the ratio at which alcohol absorbs infrared light at the same three wavelengths.
Chemical interferants are possible contaminants to your breath test in some situations. If your occupation exposes you to chemicals that may potentially have affected your breath test, you need to tell the lawyer handling your case. Certain types of paints, adhesives, solvents or cleaning products may affect a subsequent breath alcohol test.
If these machines did work properly, (untested by the Missouri Department of Health to my knowledge), it is designed to either: print the “INVALID SAMPLE” error code on the card (if it cannot correctly subtract out the effect of the interferant detected); or automatically “subtract out” the effect of the interferant detected.
The police are trained to give the driver a blood or urine test in this situation, but if the machine is such a piece of junk that it cannot tell the difference between ethanol (alcohol you have drunk) and paint fumes, what difference does it make?
Margin of Error
One of the biggest weaknesses of the breath testing machines utilized in Missouri DUI / DWI cases involves the allowed margin of error for testing results. If you blow a 0.08% BAC, believe me, they WILL try to convict you despite being right on the edge of the legal limit, but when it is time for testing and maintaining the Missouri breath test machine, they are allowed a 0.05% variance!
This means that when the machine is tested, they run a known solution through it, usually a "0.10" solution. If the machine comes back as low as 0.05, or as high as 0.15, it is close enough for testing purposes-- good enough for government work.
Every numeric measurement of the machine other than the driver's breath has an "allowed" margin of error.
For instance, when the breath testing machines are “tested” for accuracy (only every 35 days!) the State of Missouri utilizes a simulator solution that is known to produce a result of 0.08%. This simulates a driver's breath, and if the machine says it is 0.08%, you might argue that it is fair to say that it is working properly, since the machine could measure a solution, known to be 0.08%, at 0.08%. Only, the breath testing machine does not have to say the testing solution is actually 0.08%, only close to it, and it is still deemed to be working!
In other words, the breath testing operator when “testing” the machine for accuracy is allowed a 23% variance in the actual result.
The temperature in the simulator solution that is supposed to read 34 degrees centigrade is also permitted to be slightly “off," of course affecting the validity of the result. The thermometers used to measure the heat of the sample solution the breath testing machines are tested with aren't even calibrated in Missouri!
Each of these allowed margins of error are explained in the Manufacturer's Operating Manual for the breath testing machines.
Another misconception regarding the breath testing devices utilized in Missouri DUI / DWI cases, such as the Intoxilyzer 5000 and the BAC Datamaster, is that they measure blood alcohol level (BAC).
Breath testing machines used in Missouri DUI / DWI cases, such as the Intoxilyzer 5000 and the BAC Datamaster do not attempt to measure a person's “breath alcohol content,” but they instead attempt to approximate “blood alcohol level” by taking the breath result as it goes through the machine and multiplying the result times 2100 to 1.
These breath testing machines do not actually measure blood alcohol level—they estimate it.
You see, for breath testing machines such as the Intoxilyzer 5000 or the BAC Datamaster to measure your ACTUAL blood alcohol content (BAC), you would have to blow 2100 liters of air into the breath machine. Think about that for a minute. That is 700 three-liter coke bottles full of air, or one 55-gallon drum.
Because no one can actually produce this much actual air to get an actual blood alcohol measurement, the breath machine takes your actual breath sample (and this breath sample and any reading of alcohol in it is minute), and then plugs it into the preset equation (i.e.-- it "guesses") utilizing what is called partition ratio.
This is a multiplication conversion based on the ratio of 2100/1 blood to breath, because the “average person” would take 2100 liters or 55 gallons of actual air to give a real BAC measurement. Never mind the fact that 2100 liters is just the number to be used for “the average person.”
In other words, if you took 10 people, person number 5 would actually have a partition ratio of 2100/1, but the four on the left would have a partition ratio of LESS than 2100/1, and the four on the right would have a partition ratio of GREATER than 2100/1.
Actual blood to breath ratios vary greatly from person to person, and from time to time with the same person. Factors that can influence variances in a person's actual partition ratio include:
Time of the consumption: If alcohol was recently consumed, the breath alcohol level will be higher than the 2100-to-1 breath-to-blood alcohol level ratio. Also, the activity of the driver will affect the blood-to-breath ratio, and the rate of elimination of the alcohol from the driver's body. Alcohol is eliminated by: respiration and breathing, perspiration and sweating, and urination.
Physical activity increased both respiration and perspiration, and in doing so increases the rate at which the body eliminates alcohol. In other words, the physical activity of the driver on the night in question greatly affects and can often change the “blood to breath ratio” from in what might normally be in that person.
Higher breath temperature will cause a 7% higher breath test result as a result of changes in the 2100 to 1 partition ratio. See the discussion of breath temperature below.
Actual blood to breath ratio in individual people varies, based upon several studies, from a low of 1100 to 1 to a high of 3400 to 1.
2100 to 1 is just a statistical average of those studies, and a random, convenient number for the State to use, despite it not in any way actually correlating to reality.
If you are not the “average person,” watch out if you have taken a breath test in Missouri, because their antiquated machines will assume you are the average person, and will spit out a breath test result based upon that false assumption.
The breath machine is taking this minute breath sample and converting it to a number that can be understood, based on “the difference in light” bringing the breath sample up to a number that can be compared to a 0.08 blood sample.
The problem is the number conversion the machine is making might be making a false assumption to begin with (if you are one of those people who have a partition ratio greater or smaller than 2100/1), and even if you are a person whose partition ratio is 2100/1, any mistakes the machine makes in converting these numbers from such a small breath sample is the equivalent of taking a paper towel tube and blowing it up to the size of a 55-gallon drum. Any error is also exaggerated by this amount.
In short, there is no doubt that partition ratios are not constant. The 2100:1 ratio that the breath testing machine assumes was decided by a Committee that disregarded all scientific evidence to the contrary. Partition ratios are moving targets.
One approach our office takes in Missouri DUI / DWI cases where someone is slightly above the legal limit is sending them to a blood lab to measure their actual partition ratio.
This can be done by taking alcohol doses in a laboratory setting, and taking breath and blood tests simultaneously at fixed intervals. Many individuals will be below the legal limit at the time they were driving when their actual partition ratio is taken into an account, rather than the arbitrary number that the machine uses to guess your blood alcohol content.
Assumption of The Temperature of The Breath Sample
The Intoxilyzer 5000 and the BAC Datamaster assume that the driver's breath is 34 degrees centigrade, and they do not actually measure the temperature of the driver's breath.
The temperature of breath leaving the mouth is assumed to be 34C / 93.2F, although much scientific literature indicates that your actual "typical" breath temperature is higher. Higher breath temperature will cause a 7% higher breath test result as a result of changes in the 2100 to 1 partition ratio.
This is another unfair assumption of the breath testing machines. You see, for every degree your breath is higher or lower than the assumed 34 degrees, it is a 0.02% variance that the machine is not taking into account.
This means that someone with a two-degree fever that allegedly blows a 0.10 BAC on one of these two breath machines, actually is at 0.06% BAC.
The better breath testing devices utilized in other states (Missouri is too cheap to purchase them), measure actual breath temperature in the driver, and then recalculate the breath sample up or down accordingly. If the same hypothetical driver were to blow a 0.10% BAC on a Draeger breath testing device, for example, the Draeger would likely produce a result of 0.06%, because it would measure the driver's actual breath temperature, and subtract out the 0.04% for the two-degree breath temperature variance prior to printing the breath test result.
Isn't it reassuring that drivers in states other than Missouri have more due process rights than you do because their state chooses not to utilize antiquated equipment in determining whether or not someone might lose their job or their freedom by being falsely accused by a bad machine?
In short, a driver's breath temperature is obviously not always 34C and may range from 32C to 38C.
Breath testing equipment is calibrated using simulator solutions that are heated to 34C +/- 0.2C.
The concentration of alcohol in a vapor is temperature dependant. Using a fixed temperature for calibration will result in erroneous readings if vapors of any other temperature are measured.
Many things obviously contribute to an elevated body temperature: sickness, fever, menstruation, etc.
If you think you might have had an elevated body temperature on the night you were arrested for these or any other reasons, you need to discuss it with an attorney who knows how to handle this type of case. Click here for a free, no obligation consultation with our office.
“Deficient Sample” / “Subject Refuse?” v. “invalid Sample” Error Codes; the “slope Detector” and The 15-Minute Observation Period
Breath testing machines utilized in Missouri DUI / DWI cases, utilize software which is known as a slope detector.
This is an internal check on the breath testing machine which allegedly is able to detect the presence of mouth alcohol, but believe me, they don't work very well, if at all.
You see, even assuming that breath testing is as accurate as a blood test (which it is not), the breath test is supposed to be measuring the deep alveolar lung air when testing for your BAC.
It is not supposed to be measuring the residue of a drink lingering in your mouth because this type of sample is much higher than the deep air of your lungs, and not representative of your true BAC.
If you take a swish of alcohol in your mouth and spit it out and then blow, the slope detector is supposed to detect it as an invalid sample, and give an “INVALID SAMPLE” error code, instructing the testing officer to begin again, after waiting for 15 minutes.
Believe me when I say, the slope detector is a joke, and that is why the officer has to wait 15 minutes to observe you prior to blowing to make sure you don't put anything in your mouth because the slope detector does not work.
I have personally swished around alcohol, mouthwash, etc. and stepped immediately up to an Intoxilyzer 5000 or BAC Datamaster where it spit out a result showing my BAC was as high as 0.24, instead of the slope detector giving an “INVALID SAMPLE” error code.
The slope detector works on the assumption that if mouth alcohol is present the driver's breath alcohol level will “peak” early and then drop off rapidly, whereas when no mouth alcohol is present, the driver's breath alcohol level will continue to rise throughout the testing process as deeper and deeper lung air is expelled.
Remember their quest is not for normally expelled air, but is instead for that air in the driver's lungs which has the highest concentration of alcohol in it, that last ¼ of the driver's lung capacity, the alveolar lung air.
As non-existent as the Missouri Department of Health Regulations are compared to other states with real breath testing programs, every state requires that the officer waits 15 minutes to observe you prior to blowing.
Numerous courts have noted the importance of the 15-minute observation period, and proper observation of a breath test subject during that time. In Carr v. Dir. of Revenue, 95 S.W.3d 121, 129 (Mo. App. 2003), the court held that:
“It is our belief that the “observation requirement” is critical to determining whether in fact an individual has driven while illegally intoxicated. The results of a breathalyzer test are given much weight, as they should be, on our judicial system. However, in order to insure the veracity and precision of this testing device does not become undermined, it is imperative for the police to follow minimum administrative guidelines in observing the driver before the test is given. We believe that such a requirement imposes a relatively insignificant administrative burden on the police, and in any event, that its benefits in installing confidence in the test results far outweigh any inconvenience.”
The Carr Court also recognized that even prosecuting attorneys agree that “the Defendant should be observed for 15 to 20 minutes prior to blowing into the breath-alcohol analyzer to ensure that he or she ingests nothing and brings nothing up from the stomach (by burp, belch, regurgitation, etc.), since these can effect the accuracy of the test.” HARVEY M. COHEN & JOSEPH B. GREEN, APPREHENDING AND PROSECUTING THE DRUNK DRIVER § 7.04(11)(e) (2002).
Breath testing machines utilized in Missouri DUI / DWI cases, have numerous “error codes” which it spits out from time to time when a malfunction of some sort has occurred.
Obviously, a trained operator of these machines would know what these error codes mean, and act accordingly.
Don't count on this being the case with Missouri law enforcement.
You would not believe the number of cases we have handled involving an error code on a breath testing machine in a Missouri DUI / DWI case, where the operating officer had no idea what the error code meant, and accordingly proceeded improperly.
The lawyer you hire in a Missouri DUI / DWI case better also know what these error codes mean, or I guarantee you the invalid result of the machine will be used against you where it should have been excluded from evidence.
“Deficient Sample” or “Subject Refuse?”
Another common error code is a “DEFICIENT SAMPLE” or “SUBJECT REFUSE?”. This is what is printed out on the evidence card that is spit out by the breath testing machine when a driver has “failed to blow” for the required 4 seconds with 6 pounds of “pressure.
”The “DEFECIENT SAMPLE” error code is on the Intoxilyzer 5000, and the “SUBJECT REFUSE?” error code is for the BAC Datamaster breath testing machine, but they are essentially the same.
Of course, the driver “not blowing hard enough” is a lie foisted on the public. You must actually only blow into the tube of the breath testing machine until the “tone” stops. The “tone” on breath testing machines only continues as long as the machine is getting sufficient air pressure to open the valve.
The driver cannot possibly blow until the tone stops no matter what the police say!
Much of the time, the driver has given a perfectly valid sample, but the cop will be up in his face yelling “BLOW HARDER!” in an attempt to trick the driver into giving a “hotter” sample.
The reason he is manipulating you into blowing harder, is the deepest air in your lungs where the alcohol concentration is the highest comes out the harder and the longer you blow.
In short, you are threatened to blow harder for fear of giving a deficient sample if you do not keep blowing until there is no more tone, despite the fact that you have already probably blown hard enough to give a valid result, and any “extra” blowing you do is manipulating the test result higher against you.
Doesn't seem like it should be possible to so easily manipulate the number of the breath test up or down by how hard you blow, does it?
A blood test is certainly not as easily manipulated. Well believe me, it is true. The manufacturer and the Missouri Director of Revenue will deny it with their last breath, but I have personally witnessed it dozens of times in lawyer seminars and through my own testing. If anyone tries to tell you the “number” is not completely susceptible to manipulation by how hard you blow, they are lying to you. Come to my office and I will show you.
Another common error code, which often is confused with the previous error code of deficient sample, is “INVALID SAMPLE”. “DEFICIENT SAMPLE” / “SUBJECT REFUSE?” and an “INVALID SAMPLE” are not the same thing, although numerous officers do not know the difference between the these and treat them the same. “INVALID SAMPLE” is the breath testing machine's error code for mouth alcohol.
The BAC Datamaster Basic Operator's Guide, states:
“2. INVALID SAMPLE: If the Datamaster detects some interference substance in the ‘Mouth” (i.e; mouth alcohol), while the subject is blowing into the instrument, the test will be aborted. Both the display and the printout will indicate ‘INVALID SAMPLE'.” It is important to note that the error code of “INVALID SAMPLE” on the BAC Datamaster is NOT (emphasis added) due to an INADEQUATE SAMPLE being given through not blowing hard enough or from a driver attempting to manipulate the breath test. The BAC Datamaster Basic Operator's Guide provides, “If an acceptable sample is not provided within the allotted time, the Datamaster will display the message “SUBJECT REFUSE?”
BAC Datamaster Basic Operator's Guide, at 6.
In short, an “INVALID SAMPLE” reading cannot be caused by starting and stopping blowing into the instrument, huffing or puffing, or sucking in on the mouthpiece or instrument. This type of activity will generate a “DEFICIENT SAMPLE” error code on the Intoxilyzer 5000 or a “SUBJECT REFUSE?” error code on the BAC Datamaster, instead of a “INVALID SAMPLE” error code. There is nothing that the driver subject is likely to do, other than burp, belch or regurgitate, which will cause an “INVALID SAMPLE” reading.
In fact, “INVALID SAMPLE” CAN be caused by the driver blowing TOO HARD attempting to comply with the officer's request, as opposed to being caused by the driver NOT BLOWING HARD ENOUGH as is ALWAYS alleged in the police report.
Isn't it ironic that the police are not held accountable for not knowing how to operate these breath testing machines? The driver is often deemed to have “refused” a breath test when an “INVALID SAMPLE” error code is present for not blowing hard, and where the driver is blowing harder and harder with the cop yelling in his face to “BLOW HARDER!”, when in fact blowing too hard or mouth alcohol is causing the error code in the first place.
Driver's often cause an “INVALID SAMPLE” by blowing too hard, as opposed to not blowing hard enough because the cop is yelling at them to “BLOW HARDER!”. The BAC Datamaster Operator's Manual admits as much:
“This message is seen only during a subject or simulated test if conducted during the subject test mode. The instrument has detected a negative going value during the test and the assumption is that there is mouth alcohol present. This can be caused by a subject blowing too hard as saliva droplets can be forced through the mouthpiece and into the sample chamber causing a somewhat unstable reading.”
BAC Datamaster Operator's Manual, at 855.
Most mouth alcohol will dissipate in about eight to ten minutes, but in a some cases, mouth alcohol can last longer. Mouth alcohol will usually dissipate in about 15 minutes, unless the subject has false teeth or some other foreign object in the mouth that causes retention of mouth alcohol.
A common problem where mouth alcohol is retained is if the driver has a cut in his mouth (like after an accident) that is bleeding so that the mouth alcohol is replenished by his blood. For every molecule of alcohol present in a liter of his breath there are 2100 molecules present in his blood. This will give an artificially high breath test result.
Another common mouth alcohol situation is where the driver's throat, esophagus, and mouth are all contaminated with alcohol. A burp, belch, vomit, or even a hard cough or sneeze “might” cause an artificial mouth alcohol contamination giving an artificially high breath test result. This another reason there is the 15 minute observation period.
When the law enforcement officer gets a mouth alcohol reading, the breath testing manuals state they are to wait another 15-20 minutes a run a new test, because mouth alcohol should be gone if observation period is properly conducted, or they should conduct alternative testing, by giving a blood or urine test to more accurately determine the driver blood alcohol level.
As discussed, many breath testing operators have no idea what the various error codes mean, and specifically have no idea that “INVALID SAMPLE” is the error code for mouth alcohol. Many defense lawyers who claim to handle DUI / DWI cases also unforgivably do not know what they mean.
Many police officers DO know what they mean and proceed on in violation of the driver's rights, knowing they will get an artificially high sample against the driver, knowing that most drivers and many defense attorneys will not know the difference.
There are more police reports coming across my desk than I care to admit, where an “INVALID SAMPLE” is present, and the driver has been written up as refusing the test for “not blowing hard enough.” It is important that you hire an attorney experienced in these matters who knows the difference! Don't let yourself be written up for a refusal, with the corresponding loss of your driver's license, when there is something that you cannot help that is causing the breath testing machine not to be able to properly read your breath!
Despite what the Missouri Department of Health says otherwise, residual mouth alcohol is a very real problem with breath testing. During the pretest waiting period of 15-minute observation, nothing should be allowed to enter the driver's mouth.
The Director of Revenue has taken the position at administrative hearings that it's position is that it does not even care if something is actually in the driver's mouth such as gum or chewing tobacco which might interfere with the test, only whether or not the foreign object was placed in the mouth prior to the 15-minute observation period beginning or during the 15-minute period!
RFI: Radio Frequency Interferance
Radio frequency interference is a huge problem in breath testing in Missouri DUI / DWI cases, and always a problem with any electronic equipment. This is commonly due to police radio transmissions on the equipment nearby where you are taking a breath test.
You should be aware that the RFI detector can be turned off on the breath testing machines used in Missouri DUI / DWI cases, and it will not prevent the breath machine from spitting out a result indicating that no RFI was present!
Even the presence of an RFI detector on a breath testing machine that is working does not assure that RFI is not a problem in your Missouri DUI / DWI case.
The detector only flags RFI of significant strength at certain monitored frequencies and RFI may be present in your Missouri DUI / DWI case that is affecting your breath test at low frequencies that the RFI detector cannot detect.
You need to be sure to mention to your lawyer if radio transmissions were happening while you were breath testing. It is even better if there is a videotape of you blowing where you can hear the radio transmissions while you were attempting your breath test.
Missouri Department of Health Regulations Compared with Other States
If you ever operate a vehicle in the State of Missouri, it is important that you are aware that unlike other States, which at least pay lip service to maintaining breath testing programs which give some hope of reliable breath testing for situations where the drivers in those states have been requested to submit to a breath test or lose their driver license, Missouri's breath testing rules are nonexistent.
All the Missouri cops have to do to get a breath test into evidence is: show that it was maintained in the last 35-days, and that the person running the test had a valid permit. They also only have to give the driver one breath test after making a DUI / DWI arrest. This is a joke.
In other states, driver's are often required to be given two breath tests to verify accuracy, if any. The machine in many states must be calibrated before and after every breath test to ensure that it is operating correctly—not every 35 days with 50 or 60 breath tests being conducted during that time.
The use of duplicated samples is a minimum standard that has been recommended for evidential breath alcohol testing for 30 years.
The National Safety Council's Committee on Alcohol and Other drugs, Kurt Dubowski, A.W. Jones, and other well-respected scientists have insisted on two test being conducted for years for scientific validity, but the Missouri Department of Health does not bother itself with such trivial details. They, of course, know better than Dubowski and Jones, the preeminent breath testing experts in the world.
When the breath machines are calibrated, a 0.08% alcohol solution is utilized to mimic the breath of a driver at 0.08% BAC. These solutions contain 8 grams of alcohol per 1000 liters of water. If the maintenance check of the breath testing machine indicates the alcohol solution sample is “around” 0.08%, it will be assumed that the machine is working.
Other states, with real breath testing programs, require not only that the solution has not expired, but that the solution is changed out every 10 days of 14 tests. This is because the solution used to test the breath machines during maintenance checks is 99.92% water, and water and alcohol evaporate at different rates, and because the solution is slightly heated each time it is used to test the breath testing machine, the evaporation could make the solution unfit for this use.
The Missouri breath testing program, of course, does not see it that way. So long as the solution used to test the breath testing machines has not expired (and the warranty from the solution manufacturer is usually 12 to 18 months out) the police can continue using the same sample over and over as many times as they like until the warranty is expired, despite the fact the solution is probably totally shot after ten times being heated up due to the evaporation.
Other states require that logs be kept of when the solution used to test the breath testing machine was changed out, Missouri does not even require that the solution be changed out, much less that the cops keep logs of when this was done.
The Missouri Department of Health has requirements for applications for permits for those who perform chemical tests in Missouri DUI / DWI cases. 19 C.S.R. 25-30.011.
There are various types of permits for chemical testing purposes. A Type I permit authorizes analysis of blood, breath, urine and saliva for blood alcohol content or other drugs.
A Type II permit is for operators of breath tests. Type II permit holders can also: conduct training courses for breath testing; conduct training courses for other applying for Type II permits; and make field repairs and perform maintenance checks on breath testing machines. 19 C.S.R. 25-30.031(1). Type III permit holders may operate breath testing machines, but does not authorize maintenance or repairs.
To lay a proper foundation for admission of the results of a breath test to prove a driver's BAC in a Missouri DUI / DWI or other drunk driving case, it must be demonstrated that the test was performed:
by following the approved techniques and methods of the Department of Health;
by an operator holding a valid permit; and
on equipment and devices approved by the Department of Health. Jannett v. King, 687 S.W.2d 252 (Mo. App. 1985).
In that case, the court of appeals noted that the provisions of Sec. 577.020 and 577.026 constitute a legislative standard for admission of such evidence superseding the common law requirements and that these sections deal solely with the testing methods necessary to validate the results of such tests, whether the proceeding is criminal or civil.
RSMo. Section 577.026. Subsection 1 provides that: “Chemical tests of the person's breath, blood, saliva, or urine to be considered valid under the provisions of sections 577.020 to 577.041, shall be performed according to methods and devices approved by the state department of health and senior services by licensed medical personnel or by a person possessing a valid permit issued by the state department of health and senior services for this purpose.” Id. (Emphasis added).
Subsection 2 further provides that: “The state department of health and senior services shall approve satisfactory techniques, devices, equipment, or methods to conduct tests required by sections 577.020 to 577.041, and shall establish standards as to the qualifications and competence of individuals to conduct analyses and to issue permits which shall be subject to termination or revocation by the state department of health and senior services.
”It is important to understand that neither 577.020 nor 577.026 even use the word “regulations,” but rather, require that tests shall be performed according to “methods” and “techniques” approved by the Department of Health.
The Department of Health regulations do not set forth all of the procedures a breath test operator must follow when administering a breath test in Missouri. Rather, many, if not most of these procedures, are necessarily learned as part of a breath test operator’s training.
19 CSR 25-30.041 (2) provides that before a Type III permit shall be issued, the applicant “shall have successfully completed a training course approved by the department for operation of breath analyzers or shall offer proof of equivalent qualifications to the satisfaction of the department.”
In other words, the Department of Health is responsible approving all training programs for breath test operators and maintenance supervisors. There, they would necessarily learn the approved “techniques” and “methods” for operating and maintaining breath test instruments.
The clearest example can be seen when reviewing the breath test checklist. The checklist appears to require the operator to start over with the 15 minute observation only if the subject vomits.
“1. Subject observed for at least 15 minutes by ______. No smoking or oral intake of any material during this time. If vomiting occurs, start over with the 15 minute observation period.” While it does not appear to require the operator to start over with the observation period if the subject were to smoke, eat a bourbon-laced cherry cordial, or drink a can of Budweiser during this time, common sense dictates that breath test operators are trained by the Department of Health to restart the observation period if the test subject were to smoke, eat or drink within 15 minutes of the breath test. There are numerous other examples of the regulations providing no guidance to breath test operators (Type III permit holders) and maintenance supervisors (Type II permit holders) with respect to testing and maintenance issues, and in such cases, it is clear that the required “methods” and “techniques” are part of their Missouri Department of Health (“MDH”) approved training.
Proper Temperature "Heaters Sample Chamber"
For example, in Stuart v. Director of Revenue, 761 S.W.2d 234 (Mo. App. S.D. 1988), although the maintenance report form does not specify the proper temperature of the “Heaters Sample Chamber,” and this information is required to be completed by the maintenance supervisor during the monthly calibration check, the Type II was permitted to testify as expert witness with respect to acceptable temperature tolerances of a breathalyzer, and the effects of temperature differences, based upon information told to him by his instructors as part as his education and study of the machine.
Sample Control Override
Similarly, in Bradford v. Dir. of Revenue, 72 S.W.3d 611 (Mo. App. E.D. 2002), the Type II testified as to the Type III’s utilization of the sample control override function, or “NV” button, on the BAC DataMaster, and the effect of it’s use on the breath sample. The regulations to not address the use of this button; therefore, when to use this button, and the effect of using it, are necessarily part of the Type II and/or Type III’s training regarding the proper methods and techniques of the MDH.
"System Won't Zero"
In Kennedy v. Dir. of Revenue, 73 S.W.3d 85 (Mo. App. 2002), the breath test operator testified that he was trained to let a maintenance person know as soon as he could when the machine indicated it has malfunctioned. In that case, the breath test operator gave Kennedy a breath analysis test, which indicated a blood alcohol concentration ("BAC") of .152 percent.
After the initial test, however, the breath analyzer machine gave a status code reading, "system won't zero." As a result, three minutes later the breath test operator gave Kennedy a second test which showed Kennedy's BAC as .144 percent.
The Type II testified that one of the explanations why the machine could have malfunctioned was that it was not working correctly. The meaning of a “system won’t zero” message code, nor the procedures to be followed when such a message code appears, are not specifically addressed by the Department of Health regulations.
These matters are necessarily learned by the Type III’s and Type II’s are part of their Department of Health approved training regarding.
Expired Simulator Solution During Maintenance Check
Similarly, in Lasley v. Director of Revenue, 17 S.W.3d 174 (Mo. App. W.D. 2000), the driver objected to the admission of the breath test result on the grounds that the instrument had not been properly maintained because the Type II had written on the maintenance report that he had used a simulator solution that had expired to conduct his monthly calibration check.
The regulations in effect at the time only required that the simulator solution utilized be from an approved supplier. Even though the Missouri Department of Health regulations did not specify that the simulator solution had to be used prior to the expiration date of the manufacturer, the Court upheld the trial court’s decision excluding the breath test.
Since Lasley had timely objected to the admission of the test result, the court found that:
“The Director bore the burden of proof and the burden of presenting evidence that the simulator solution was not deficient and, thus, that the breath analyzer did not provide a false reading when the issue of whether the solution's effectiveness was raised.”
Again, it can be reasonably presumed that Type II’s, as part of their training regarding the methods and techniques of the Missouri Department of Health, are being taught not to use expired or contaminated simulator solution when performing monthly calibration checks.
In Martin v. Dir. of Revenue, 142 S.W.3d 851 (Mo. App. S.D. 2004), the first test reported an “invalid subject sample.” Less than five minutes later, the officer gave the motorist a second test, which showed the motorist's blood alcohol level higher than the legal limit.
The DOH regulations are silent as to what procedure should be followed when an "invalid sample" reading is obtained or what an “invalid sample” is. Experts testified on both sides regarding what is the likely cause of an invalid sample and what procedures must then be followed to insure a reliable sample.
Alcohol in The Air Blank Prior to The Driver's Breath Test
Finally, in Vernon v. Dir. of Revenue, 142 S.W.3d 905 (Mo. App. S.D. 2004), the “blank test” following Vernon’s breath test showed the presence of alcohol.
Although the Missouri Department of Health regulations do not indicate what a “blank test” is, (this is the blank that is run to show the machine is purged and not tainted with alcohol or foreign substance immediately prior to the driver's breath test), let alone what procedures must be followed when the operator is faced with this situation of alcohol in the blank test, the court of appeals nevertheless upheld the decision of the trial court excluding the breath test from evidence.
Again, apparently relying upon his Type III training, the breath test operator testified that the breath analysis test itself is composed of a blank test immediately before a subject's breath sample, a test of the subject's breath sample, and a blank test immediately after the subject's breath sample.
He further explained that the purpose of the blank test is to ensure the instrument does not give a false reading for alcohol when no alcohol is present in the machine.
The Type II also testified. He explained that the purpose of the blank test is to ensure that the instrument is functioning properly at that time of the test and that during a blank test the instrument should give a reading of .000.
Furthermore, he related that any reading other than .000 would indicate that the instrument was picking up some type of sample of alcohol in the chamber, and that while he would not be concerned over a very minor deviation, he did affirm that if the instrument is not functioning properly you take it out of service.
At this point in time, the Missouri Department of Health still does not require the breath test operator to obtain duplicate breath samples from a driver who has been arrested for DWI (like other states with real breath testing programs).
Duplicate testing - that is, obtaining two samples between 2-10 minutes apart, both of which must agree within .02, greatly reduces the risk of obtaining a falsely high breath sample resulting from a burp, belch or regurgitation. In such a state, simply being in the presence of the driver, in the same car or the same room, and exercising reasonable care to insure that the subject does not place anything into the mouth, might otherwise be sufficient, but this issue is also currently being fought tooth and nail in the Missouri Supreme Court, as the Missouri Director of Revenue doesn't think it should have to be bothered with something as "insignificant" as making sure nothing happens in the 15 minutes prior to the breath test which might improperly indicate a driver is above the legal limit.
Rules Governing the Administration of Chemical Tests in Missouri
Chemical tests in Missouri must be performed in accordance with Missouri Department of Health Regulations 19 CSR 25-30.080.
There are both Missouri statutes and Missouri Department of Health regulations regarding blood draws in Missouri DWI cases. Missouri Department of Health Regulation 19 CSR 25-30.070(1) requires that “blood samples shall be taken in accordance with the provisions of sections 577.029”.
RSMo. 577.029 Provides That:
“A licenses physician, registered nurse, or trained medical technician at the place of his employment, acting at the request and direction of the law enforcement officer, shall withdraw blood for the purposes of determining the alcohol content of the blood, unless such medical personnel, in his good faith medical judgment, believes such procedure would endanger the life or health of the person in custody. Blood may be withdrawn only by such medical personnel, but such restriction shall not apply to the taking of a breath test, a saliva specimen, or a urine specimen. In withdrawing blood for the purposes of determining the content thereof, only a previously unused and sterile needle and sterile vessel shall be utilized and the withdrawal shall otherwise be in strict accord with accepted medical practices.
A nonalcoholic antiseptic shall be used for cleansing the skin prior to venapuncture. Upon the request of the person who is tested, full information concerning the test taken at the direction of the law enforcement officer shall be made available to him.” Id.
The State has the burden of proving absolute and literal compliance with the provisions of RSMo. 577.029 before a blood test result may be admitted into evidence. State v. Setter, 763 S.W.2d 228, 230 (Mo. App. 1988). Furthermore, “(r)ules of a state administrative agency which have been duly promulgated pursuant to proper delegated authority have the full force and effect of law.” Woodall v. Dir. of Revenue, 795 S.W.2d 419 (Mo. Ct. App. 1980). “Missouri courts have previously determined that the state must demonstrate absolute and literal compliance with statutory provisions contained in Chapter 577 regulating the manner in which blood alcohol tests are administered prerequisite to introducing the test results into evidence. See Setter, supra. These statutory enactments serve as “a substitute for the common law foundation for the introduction of evidence of analysis for blood alcohol, and are mandatory. State v. Peters, 729 S.W.2d 243, 245 (Mo. App. 1987). Similarly, where the Missouri Department of Health has enacted regulations concerning the proper methods of conducting blood alcohol tests as authorized by Chapter 577, including urine analysis, the State must demonstrate absolute and literal compliance with these regulations prerequisite to introducing the test results into evidence.” State v. Regalado, 806 S.W.2d 86, 88 (Mo. App. 1991).
Seizure of Blood—Warrant v. No Warrant
As discussed elsewhere in this site, when an officer requests that you submit to a chemical test once he has placed you under arrest for suspicion of DWI in Missouri, you have a statutory right to refuse to take any chemical test of your blood, breath, or urine under § 577.041, RSMo.
This statute specifically provides that once you refuse such a chemical test, “then none shall be given.” The refusal of the chemical test can be used against the driver as an inference of intoxication in the criminal case, and the driver can have his or her driver’s license suspended or revoked for at least one year for the refusal. Hinnah v. Director of Revenue, 77 S.W.3d 616 (Mo. banc 2002).
Accordingly, blood cannot be drawn under this statute without a warrant. However, this does not mean that once a driver refuses a chemical test, that the officer cannot go get a warrant from a judge for a forcible sample of the driver’s blood.
In other words, the Missouri chemical test refusal statute, § 577.041, only limits “an officer’s authority to obtain a sample after a refusal, not a judge’s authority to issue a warrant to obtain evidence.” State v. Smith, 134 S.W.3d 35 (Mo. App. E.D. 2003).
There is also the situation of a driver who is unconscious or incapacitated from an Missouri DUI / DWI case involving an accident. § 577.033 provides that an officer can take a chemical test sample from someone dead, unconscious, or otherwise in a condition rendering him or her incapable of refusing, and that such a person has by statute “consented” and not “refused."
Some states, such as Arizona, have truly gone insane, and allow forced blood draws by officers on the side of the road without a warrant.
Officers in these states carry around blood draw kits with them in the trunk of their hot cars. You do not have the right to refuse the officer’s blood test. If you do refuse, they are trained in many jurisdiction to physically restrain you, tape your arm to the hood or trunk of the car, and do a forcible blood draw right on the side of the road. They do not have to even take you to a hospital for the forcible blood draw, to have qualified medical personnel give the test, and can use a needle for the blood test pulled out of the trunk of the officer’s car. Sounds delightful, doesn’t it?