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If you have been arrested or charged with a DUI, contact a criminal defense attorney immediately. Contrary to common perceptions, there are many mistakes commonly made during DUI/DWI investigations that cause innocent people to be charged. Most people are dumfounded to know that something as simple as using a low carb diet or having indigestion can dramatically skew the amount of alcohol a breathalyzer reports. They are frequently surprised to learn that there are stacks upon stacks of scientific research papers regarding the mistaken readings these “breathalizer” machines produce. Take charge of your situation by contacting me so that I can start the investigation and development of your case right away. Even if it is 2 am in the morning, you can start by clicking the link below. All submissions are confidential, free and reviewed by me personally. I will contact you shortly and if appropriate schedule a 30 minute free consultation where you will meet me to discuss your case personally.

Breathalyzer Testing:

The State of California currently requires a person suspected of a DWI/DUI to submit to a blood, breath or urine test to determine the blood alcohol content of the subject. A refusal to submit to such a test may have more serious ramifications than a test result with a BAC over the legal limit.

The Intoxilyzer 5000 is the current breath-testing machine most commonly used. This is the machine that is generally used when a DWI/DUI suspect is taken to the police station and should not be confused with the preliminary breath test (PBT) that may be used at the scene of a DWI/DUI stop. The PBT is generally not admissible as evidence in Court whereas, the results of the Intoxilyzer 5000 may be critical to a prosecutor’s case.

The manufacturer of the “Intoxilyzer” is CMI, a Kentucky corporation. Though the Intoxilyzer has the potential to be accurate, it is not infallible. Breath testing in general is subject to may errors and pitfalls.

THIS RATIO IS INACCURATE BASED ON INDIVIDUAL DIFFERENCES.

Research has clearly demonstrated that the ratio between breath and blood may vary between individuals. This is critical since a person with a ratio lower than 2100 to 1 will result in an inaccurate and high blood alcohol test result from a breath sample.

BREATHING TECHNIQUES MAY AFFECT TEST RESULT

Breathing techniques may also affect the Intoxilyzer 5000 reading. A longer breath sample – over ten seconds – may result in a higher BAC reading by more than 100% since the machinery is calibrated to test a 10 second sample. Additionally, a person who breaths shallow or holds their breath may accumulate residual mouth alcohol resulting in a higher reading than their true BAC. Hyperventilation may also impair the test. The affect of breathing techniques on Intoxilyzer results was confirmed in recent research conducted at the University of Washington Department of Medicine by by Dr. Michael Hlastala.

OUTSIDE RADIO SIGNALS MAY AFFECT DEVICE

Numerous reports and scientific articles have demonstrated that the Intoxilyzer 5000 becomes unstable if it is in proximity to any other devices emitting radio waves. A police officer’s radio or proximity of the machinery to the airport may cast doubt on the accuracy of test results.

MOUTH ALCOHOL AND CONTAMINATION FROM OTHER SOURCES

Today’s breath testing equipment relies on and infrared analysis of the breath sample to determine how much alcohol is present in a breath sample. A major flaw in the instrument is its inability to differentiate between alcohol in a subject’s mouth and alcohol from the lungs (the deep lung air). Residual mouth alcohol can be created by having foreign objects in the subjects mouth which retain alcohol, such as denture adhesives, chewing tobacco, gum and others.

MACHINES MAY DETECT OTHER CHEMICALS AS ALCOHOL

The Intoxilyzer machine has great difficulty detecting molecules which have a similar structure to ethyl alcohol. There are many molecules in the methyl group which includes ethyl alcohol. The Intoxilyzer bombards a breath sample with infrared light. The light absorption is then tested based upon the Baer-Lambert theory stating that organic substances absorb infrared energy at different wave lengths. The wave lengths tested by the Intoxilyzer 5000 are 3.39 and 3.48 microns. However, there are a number of other similar substances that also absorb infrared light at these wave lengths. Chemicals that are commonly used in wood working or construction may be inhaled, or even a strong presence of chemicals on a person’s clothing may be read by an Intoxilyzer 5000 as alcohol.

PHYSICAL DISABILITY MAY AFFECT READING

Certain illnesses or disabilities may also create chemical reactions in the body which affect an Intoxilyzer reading. A person with heartburn, liver disease or diabetes may have chemical reactions in the body that the impairs a breath sample. The same can be said of people with certain diets, or those on certain medications. Hyperventilation or sitting in certain positions may also cause sample error on a breath test. Further, the subject’s exposure to certain chemicals such as acetone may result in an inaccurate breath alcohol test result.

BREATH TEMPERATURE MAY AFFECT READING

The temperature of a person’s breath may have a critical impact on the accuracy of a breath test. The Intoxilyzer 5000 is calibrated to test breath at 34°C. This is the same temperature that is used for simulator solutions. However, breath samples provided may not always register at exactly 34°C. Even a slight difference may have a critical impact. A variation of only one degree may result in a BAC reading that is 7% higher.

HOW ARE RESULTS CHALLENGED

Intoxilyzer 5000 results are challenged by reviewing intoxilyzer maintenance records, police reports and subject test results. Often, these documents will clues will provide clues to inaccurate testing. Erroneous tests may be suppressed so that they cannot be used at trial and if suppressed, may render the prosecutor’s case weak and impossible to win.

I can not stress enough the value of investigation into the case. It has never hurt a case of mine. At worst, I find bad facts or evidence before the other side so that I am able to minimize it. At best, it will set the wrongly accused free. A common misconception is that investigation is unnecessary as it has already been performed by the police. While each case differs, police seem to be better at finding evidence of guilt than innocence. Once a police officer suspects you of a crime, it is their job to garner evidence of your guilt. Because the initial evidence may point to guilt, police officers frequently overlook evidence to the contrary. Ideally, I like to investigate the case in its entirety. Frequently this will require a private investigator as attorneys are justifiably reluctant to put themselves in the position of being forced to testify to impeach a witness. Private investigators frequently interview witnesses and record witness statements. My clients have prompt access to private investigation. Due to established relationships, I am generally able to initiate private investigation within twenty four hours. That can be critical to accurately determining the facts of a case and preparing the case for hearing.

Many people as me “Why would anyone plea no contest when they are innocent? Why not go to trial?”. In the case of Defendants who don’t post bail and remain in jail pending trial, sometimes months pass prior to their opportunity to even have their case heard by a jury. The prosecution will often make an offer that allows our client to avoid the risk of trial and serve little or no additional jail time. Should my client have gone to trial in the case about and been found not guilty, he would have been released at about the same time. Given the fact that he would have faced up to 13 years in the event of trial, he chose to accept the prosecutions deal.

These low carb diets work by forcing the body to convert fat for energy rather than carbohydrates as usual. When the body is starved of carbohydrates and burning fat, isopropyl alcohol is released. Most of the breathalyzers used in California are not able to distinguish between the isopropyl alcohol produced by the body on low carb diets, and ethyl alcohol, which is the alcohol on the breath caused by drinking.

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