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DUI Issues &Technology bruce on 18 May 2011

3 Physical Reasons Breath Machines Can Overstate Blood Alcohol Level

This post is the first of a three part series on physical reasons breath machines can overstate a person’s true blood alcohol level.

Reason One: Breath Temperature

Most people will realize that measuring a person’s breath to determine their true blood alcohol level is an indirect measurement, whereas measuring the blood is direct.  What is ignored by the government witnesses are the variables among individuals which can change the predetermined conversion factors from breath to the blood.  In other words, the breath machine assumes that all of us have the same physical features, such as body temperature, weight, breathing patterns, etc.  We know this is not true.  This note will explain why and how this matters.

In order to measure a gas which has evaporated from a liquid, we use Henry’s law.  Simply put this scientific rule says that if we know the amount of the alcohol in the blood, and we know the temperature the blood is heated to, then we can use a set formula to determine how much of the alcohol in the blood would evaporate in to the air.  Working backwards, if we measure the alcohol in the breath, we can estimate the alcohol in the blood, BUT WE MUST ASSUME A SET TEMPERATURE.  In state run labs the assumption is that the breath is at 34 degrees centigrade.

Henry’s law dictates that at 34 degrees centigrade, the breath will contain 82.7% of the alcohol in the blood.  How is  this important for most people?

The research upon which the 34 degree premise was predicated was conducted in 1950 by Dr. Harger.  Unfortunately he only used SEVEN SUBJECTS.  More recent research, conducted by several different scientists using HUNDREDS of subjects has determined that TRUE breath temperature is 35 degrees Celsius.  While one degree may not seem like much, using Henry’s law, for every ONE DEGREE increase in breath temperature, the results will OVERSTATE the true blood alcohol by about 6%.

Standing alone this may not seem like much, but when added to the other physical factors I will discuss in upcoming entries, the breath can be as much as 35%.


California DUI Law &DUI Law &Technology hudson on 21 Jun 2010

Ignition Interlock Pilot Program

Starting July 1, 2010, individuals arrested and then convicted of a first offense DUI, in Alameda, Los Angeles, Tulare and Sacramento counties, will be required to install an Ignition Interlock Device on their vehicle. First offenders will be required to install these devices for 5 months (12 months if an injury was involved). Despite proponents claims that these devices only cost $75 to install and $50/month to monitor, our check of local service centers found much higher prices. A first time DUI offender should expect to pay at least $500 over the the five months on top of other fines and penalties.

The implementation of the Ignition Interlock requirement in the four “pilot” counties was contingent upon funding to be created to cover the costs of the program. The law offices of Kapsack and Bair continue to investigate the source of the pilot program funding (Freedom of Information Requests have been served on the District Attorney for Alameda County, the Department of Motor Vehicles, California Attorney General and other government agencies), it appears likely that if you were arrested for a DUI after July 1, 2010 you will have to add an Ignition Interlock to the cost of losing your first offense DUI case.

Under legislation currently before the Public Safety Committee, if you are arrested and then convicted of a second offense DUI you will be eligible for a restricted license after 90 days of actual suspension after installing the Ignition Interlock Device. In the four pilot counties second offenders will be required to install the ignition interlock devices for a minimum of twelve months.

While it remains to be seen what will happen to individuals currently serving suspensions for multiple DUI convictions or administrative actions, it seems likely that the shortened suspension periods will only effect those persons violating the DUI statututes after July 1, 2010.  It also remains unclear whether persons who’s licenses are suspended through the administrative process will be eligible for the same treatment.  Meaning, if your license is suspended for a multiple time for through the administrative process, and you are convicted of a multiple offense DUI in court, you may not be eligible for the shorter restriction following installation of the Ignition Interlock Device.

Alcohol Issues &DUI Issues &DUI Law &Kapsack & Bair &Technology hudson on 10 Feb 2008


By now most people have heard of the source code litigation taking place in Florida, Minnesota, New Jersey, and elsewhere. Few people however understand what the fuss is all about. Let me put it to you in simple terms.

It is almost the same investigation that was used in evaluating voting machines. That investigation, and software evaluation, revealed a number of flaws which were felt to undermine the reliability of the machines.

In other words, the same type of information that is being sought by people ACCUSED OF CRIMES was turned over for evaluating voting machines. Upon analysis it was determined the machines didn’t pass muster. I am not sure about you, but seems to me that putting people in jail is at least as important as putting someone in office, and that if a machine is not sufficient for the latter it certainly is not for the former.

Suppose you were accused of a crime? Further, suppose that the only witness against you states under oath that they ran a test that proves your guilt beyond a reasonable doubt. In fact, in some courts, you can not even present evidence against this witness.

Would you consider this fair? Wouldn’t you like to know how the test was conducted? Wouldn’t you like to know how it was graded? Wouldn’t you like to know that the math, answers and all other aspects were legitimate?

That is what source code litigation is all about. Simply put it is the right to find out how the breath machines work. All that is being sought is how do the machines do what they claim they can do.

Is this just a fishing expedition, an exercise in futility and merely an excuse to use up resources and cause delay? You be the judge.

Throughout the time of the Intoxilyzer use in California and elsewhere the manufacturer indicated that these machines performed regular ‘self diagnostics’. For years it was assumed that this was true. Then one December a group of defense attorneys and experts decided to test this program by removing a number of the critical parts of the breath machine and running the program. Turns out that 13 critical parts of the machine can be removed and the self diagnostic still gives an “OK” message.

Think about this; the machine can have a vital part disconnected and it will still tell the police it is operable, still give a reading and STILL CONVICT CITIZENS. In fact, this author brought this to the attention of the Contra Costa crime lab, AND THEY STOPPED USING THOSE MACHINES.

Additionally, it was discovered, through experiments, that when the machine clears itself in between tests, it does not really do so. What the machine truly does is LIE. It prints out that there is no residual alcohol in the machine which would lead one to believe it is empty, and that is exactly what the manufacturer warranted, but what it really does is measure the residual alcohol and allegedly subtracts that from the next sample.

Wouldn’t you like to know if this works? Does the machine round up or down?

Now, given these two examples, BOTH CONTAINED IN THE SOFTWARE, isn’t it reasonable to allow the accused the right to see what other shenanigans may be going on? In every other aspect of criminal defense the accused can see the witness against them, test or retest the evidence, and obtain a full report of how the expert for the government came to its conclusion. But not when it comes to a DUI. The breath is destroyed, the machine is immune from questioning and the manufacturer will not tell anyone, INCLUDING THE GOVERNMENT, how it works.

All that the source code litigation is demanding is disclosure and fairness. Besides, if you had faith in your processes, why would you try to hide them?

Alcohol Issues &DUI Enforcement &DUI Issues &Technology hudson on 06 Dec 2007

What’s Your Alcohol Level?

It may seem weird for a DUI lawyer to be a proponent of a .00 legal limit but I’m one. Let me explain how I determined that I supported a .00 legal limit. Since our government is intent upon criminalizing conduct that may only cause harm it seems unfair that people “breaking” the law should know when it happens. When a person is out drinking with friends, family, co-workers or others socializing they have no idea when their blood alcohol concentration crosses from being legal to illegal. Each person metabolizes alcohol at their own rate, a rate that depends upon the time of day, the amount of sleep that they got the night before, stomach contents, alcohol level of drink, mixer and many other factors. When people go out they have no idea how much liquor is in their drink and frequently as they cross from below the legal limit to the legal limit, they can’t tell nor can the people they are drinking with. Rarely, does a person exhibit the commonly accepted symptoms of being intoxicated, they aren’t slurring their words or staggering, in fact they look just like you and me, but they are violating the law. They may be stopped by law enforcement for having an equipment violation, or possibly departing their lane while they fumbled for something they dropped, something that isn’t obviously driving under the influence. The simple fact is that most people don’t know when they go from legal to drive to illegal to drive a legal, if the legal limit was zero, we would all know that if we had a drink and chose to drive we were in violation of the law.

For persons looking for a less extreme approach, Stephen J. Dubner wrote a column relating to breath testing technology that other countries employ to help remove the “guess work” from guessing whether its safe to drive.

DUI Defense &DUI Issues &Technology hudson on 20 Nov 2007

FBI Repudiates “Scientific” Analysis

Next time you are listening to court case in which the defendant is proclaiming their innocence and the sole evidence for the prosecution is circumstantial evidence. When suddenly the prosecution trots out an “expert” with some sort of mechanical wizardry that purports to link the defendant to the crime. The scientific method involves some sort of analysis based upon dubious scientific theory, think it doesn’t happen? Think again.

Two years ago the FBI rejected the notion that lead bullets could be linked to a crime scene through analysis of the chemical composition of the bullet and bullets subsequently found on a suspect. This “scientific” technique was based on the theory that each “batch” of lead from which bullets were made had some sort of unique quality that could separate each one batch from another. The technique was initially developed when President Kennedy was assassinated and grew to be a commonly accepted science, then, in 2004, the National Academy of Sciences determined that the technique was unreliable and misleading. Interestingly, the technique was commonly accepted for over three decades before finally it was deemed unreliable.

Now, you would think that the FBI would make it a priority to discover which convictions were based in full or in part upon the misleading “scientific” technique, since our justice system is founded upon “innocent until proven guilty” and a lot of societal lip service is given to the importance of freedom, yet nothing has been done.

It is a sad, sad statement on our legal system that citizen’s who may have wrongly convicted for crimes based on this “scientific” technique continue to sit in jail with no one fighting the wrongful nature of the conviction.

You may ask yourself, why would a blog dedicated to DUI find this interesting? Well, as it turns out we have been fighting over breath testing for decades, the only true measure is that from the blood, every other measure is a “scientific” guess based upon some circumstantial evidence. The breath is measured either by elctrochemical cell technology or by infrared spectroscopy, neither of which measure the actual blood alcohol concentration. Will we eventually prevail on the issue of breath testing as circumstantial evidence as opposed to direct evidence? Will we ever manage to win the challenge that the “technology” is merely a guess? That the foundation of the theory is dubious and that the results are “unreliable and misleading?” One can only hope…

Technology &Uncategorized hudson on 15 Nov 2007

Technology Ripe for Abuse?

San Diego is experimenting with a machine that automatically scans a license plate and checks it against a data base of stolen cars. Detective le Ribeus stated in an interview that the eqipment picks up nearly every license plate it passes. The technology replaces the earlier method which required that an Officer write down and call in a suspicious license plate before recovering the car or inconveniencing the driver.

The technology is currently only used to run license plates against a list of stolen cars, it doesn’t take much to swee the possibility of running licenses against other data bases, cars without insurance, drivers with suspended licenses, how about just tracking citizens on the road?

DUI Defense &DUI Issues &Technology hudson on 30 Oct 2007

Beware PAS Device Testing Flaws

Check out this video, the lawyer demonstrates a flaw in the design and manufacture of the Draeger handheld breath test. The video supports the defense that law enforcement, by blocking the exit port of the device, can manipulate a below the legal limit test into an above the legal limit test. The video is a remarkable demonstration of a simple but effective method of producing incriminating evidence from an otherwise innocent person.

Technology hudson on 07 Aug 2007

Nissan to Integrate Alcohol Testing Technology

Nissan unveiled a concept car intergrating “anti-drunk driving” technology. The car will be equipped with three different types of alcohol analysis, “breath odor analysis”, facial analysis and driving analysis. The breath odor analysis will be based on two separate technologies, first it will have sensors built into the shifter that will sense alcohol in sweat, second, it will have odor detectors built into the seats that will sense alcohol in the cabin. The second system for preventing drunk driving will be a facial camera mounted in the dash, it will analyze a driver’s facial movements and eyes, if the eyes start to sag or the device otherwise “thinks’ the driver is nodding off or DUI, it will communicate through the navigation system and tighten the seatbelt to get the driver’s attention. Finally, the car will analyze the driving behavior, if it “thinks” the driver is exhibiting inattention it will communicate therough the navigation and tighten the seatbelt to gain the driver’s attention.

What I am curious about is, who will buy this car? If Nissan thinks a person who drinks and drives will purchase it, I think they may be mistaken. At what levels will the car set off its warning systems? While .08 is the legal limit some States have levels at which sobriety is presumed. If a drunk driver is involved in an accident driving one of these cars, will Nissan have liability? For further information on the car click here.

Technology hudson on 10 Jul 2007

New Blood Alcohol Testing Technology

A company in New Mexico has patented and is now field testing a device that measures blood alcohol concentrations non-invasively. The device appears to operate in a fashion like a pulse oximeter, a small clamp like device that hospitals use to measure the amount of oxygen in patients experiencing respiratory distress. The compay webite describes the technology as employing near-infrared (NIR) absorption spectroscopy to measure the concentration of alcohol by introducing NIR light into the skin and collecting the light that returns to the tissue surface (often referred to as diffuse reflectance).

We haven’t had the opportunity to see one of these devices in action to determine how accurate it is in its measurements or ability to determine whether what it is rteading is ethyl alcohol or some other compound with a similar molecular structure. Alcohol specificity is a common problem for non-invasive blood alcohol measuring devices. Trutouch Technologies must also get Federal approval and join the list of “conforming devices.”

While we have not seen this technology used by any law enforcement agencies that we work with it is important to note that it may be coming to a police force near you.

DUI Issues &Technology hudson on 01 Jun 2007

Draeger Breath Tester Source Code to Be Revealed

A few weeks ago I wrote about the on-going litigation in New Jersey regarding various issues relating to the Draeger Breath Testing equipment. The New Jersey Supreme Court ordered Draeger to provide the computer code that runs the device. This is an important development as the code determines how the machine reaches conclusions regarding the measurements that it makes. Having a third party authenticate the software is a huge win for the New Jersey lawyers litigating this issue. The importance can not be underestimated as the outcome of this litigation may have far reaching impact, perhaps even to California where the Draeger is growing in popularity.

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