Top Four Reasons to NEVER, EVER Blow into an Alcohol Breath Testing Machine - Instead, Always Request a Blood Test! : It has always been my opinion that you should NEVER, EVER blow into an alcohol breath testing machine if you are being investigated for DUI - Driving Under the Influence of alcohol by a police officer.
Having said that, there are two exceptions: If you are under the age of 21, you must blow into a breath testing machine, because if you refuse you could lose your driving privilege for one year.
The second exception is: if you are currently on probation for a prior DUI conviction, you must also blow into a breath testing machine. This is because one of the terms of probation is that you not drive with any measurable amount of alcohol in your blood. Again if you refuse to blow into the breath testing machine you could lose your driving privilege for one year, plus you may get additional punishment from the court for violating the terms of your probation.
Unless one of the two exceptions above applies to you, here are FOUR reasons why you should never blow into an alcohol breath testing machine when asked to do so by a police officer:
Reason #4: You don't have to. Usually while conducting a DUI investigation, the officer will want you to blow into a Preliminary Alcohol Screening (PAS) Machine. You have the right to decline this test.Specifically, Vehicle Code 23612(i) requires that the officer advice the person that the PAS test is voluntary and the person can decline the test.
Unfortunately, many officers won't tell you this and instead say “you must blow into this” and then later claim that he did advise you that it was voluntary - yes, they do lie!
Reason #3: If you blow into a Preliminary Alcohol Screen (PAS) machine, or an Evidentiary Breath Test (EBT) machine, the officer will know the result immediately and will have that result in mind when writing the arrest report, which will likely now be more embellished.
If you don't blow into an alcohol breath test machine and request a blood test instead, the officer will have no idea what the result is because it takes time for the blood sample to be analyzed. By the time the blood test result is available, the officer's report will have been written and its content will likely be more objective since the officer wrote it not knowing the blood test result.
Reason #2: Alcohol breath testing machines have many problems, but the worse problem, in my opinion, is that the device will overstate the result by 200 to 300% if you are still absorbing the alcohol that you drank.
Among other assumptions, the science of alcohol breath testing assumes that the individual has fully absorbed all of the consumed alcohol before taking the breath test.
Being “fully absorbed” means that all of the alcohol that was drank is no longer in the stomach or in the small intestine – all the alcohol has absorbed into the blood stream and has reached “equilibrium” in the body.
Equilibrium means that the alcohol content is the same throughout the entire body. Thus if a blood sample was drawn from your big toe, and one from your ear lobe, and both samples were analyzed, the results would be the same.
The problem is it can take up to 6 hours to become fully absorbed, especially if the subject had food in the stomach. Food in the stomach will slow down the absorption rate of the alcohol.
The point is no one knows if they are fully absorbed of the alcohol that they drank, so by blowing into a breath test device you are taking a huge risk because if you are not fully absorbed, the machine will overstate the results by 200-300%. This means that if someone in reality has a blood alcohol concentration of .05%, the machine can give an erroneous result of .10% to .15%.
Reason #1: Now, probably the most important reason a driver being investigated and accused of DUI should NEVER blow into an alcohol breath testing machine is that the California Supreme Court, in a recent ruling (People v. Vangelder, 13 S.O.S. 5916), has decided that a person accused of driving with a blood alcohol concentration of .08% or more (VC 23152(b)) cannot challenge the science and overall reliability of breath testing devices.
The Vangelder ruling does not eliminate all defenses but it does preclude an accused person from defending him or herself by attacking the flawed science behind alcohol breath testing, which makes the results from alcohol breath testing machines unreliable.
In making its ruling, the California Supreme Court chose to ignore the latest science and research conducted by the top scientists in the field as it relates to breath testing for alcohol; the court instead accepted the “junk science” put forth by the government for purely political purposes.
The courts position was simple: the end justifies the means. In other words, the courts opinion was driven by an agenda to protect the breath testing programs that are currently in place and has cost the government millions of dollars.
To show how absurd the court's agenda-driven ruling is, the court writes towards the bottom of page 46 of its opinion:"It is a well-settled principle that the legislative branch is entitled to deference from the courts because of the constitutional separation of powers." The court then cites various authorities for this well established separation of powers proposition.
However, the court goes on to write: "Just as a court will not substitute its judgment for that of the Legislature in this regard, nor may a defendant, through an expert witness, invite a jury to substitute the expert's judgment for that of the Legislature…” The court cites no authority whatsoever for this latter proposition. Not one.
Are they kidding? The court embraces the constitutional 'separation of powers' doctrine that applies between it and the legislature (two separate branches of government), and ignores the constitutional 'due process' rights of an accused person.
According to the court, a person accused of DUI cannot attack the general reliability of an alcohol breath test machine in his/her defense because the legislature said so. Is the legislature all of sudden all powerful and infallible? The judgement of the legislature now trumps the constitutional right of a person accused of a crime to defend him or herself?This is the absurdity of the court's ruling in Vangelder.
Yes, no doubt the Vangelder ruling will be appealed to the United States Supreme Court, because it violates the Constitutional right of an accused person to defend him or herself.
The Court's ruling reminds me of Galileo, who argued that the Earth and the other planets revolved around the Sun (heliocentrism), while the ‘powers at be' believed that the Sun and planets revolved around the Earth (geocentrism). Galileo was eventually convicted of heresy for questioning the status quo and to shut him up. Apparently Government has not changed too much.
Until the Vangelder ruling is clarified or overturned, you will be better off to NEVER, EVER blow into an alcohol breath test machine if a police officer stops and accuses you of DUI.
ALWAYS request a blood test instead. And make sure you share this with your friends.