Stopped for DUI? Why you should Never, Ever Blow into a Breath Test Device… Especially Now!

I have always been of the opinion that if you are being investigated for Driving Under the Influence (DUI) of alcohol by a police officer, NEVER, EVER blow into a breath testing device, and ALWAYS request a blood test.

breathalyzerHowever, there are two exceptions: (1) if you are under the age of 21, you must blow into a breath testing device, and (2), if you are currently on probation for a prior DUI conviction, you must also blow into a breath testing device.

Unless one of the above exceptions apply to you, here are FOUR reasons why you should never blow into a breath testing device when asked to do so by a police officer:

Reason #1:  You don’t have to.  Usually while conducting a DUI investigation, the officer will want you to blow into a Preliminary Alcohol Screening (PAS) Device.  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 #2:  Breath testing devices 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 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 body.  So 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 risk because if you are not fully absorbed, the machine can overstate the results by 200-300%.  Thus someone who in reality has a blood alcohol concentration of .05%, the machine can give an erroneous result of .10% to .15%.

Reason #3:  If you blow into a Preliminary Alcohol Screen (PAS) device, or an Evidentiary Breath Test (EBT) device, the officer will know what the result is 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 a breath test device, and request a blood test, 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 #4:  The fourth, and probably now the most important reason a driver being investigated and accused of DUI should NOT blow into a breath testing device is that the California Supreme Court, in a ruling this week (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 overall reliability of breath testing devices.  Thus because of the Vangelder ruling, reason #2 above can no longer be used as a defense.

The Vangelder ruling does not eliminate all defenses but it does preclude an accused person from defending him/herself by attacking the flawed science behind breath testing.

In making its ruling, the California Supreme Court chose to ignore the latest science and research conducted by the top scientists across the United States as it relates to breath testing, and instead accepted the “junk science” put forth by the government for purely political purposes.  Therefore many persons wrongfully accused of DUI will be convicted. The Courts position is simple: the end justifies the means.

Yes, I suspect appeals to the United States Supreme Court will come, but in the meantime, NEVER, EVER blow into a breath test device, and instead ALWAYS request a blood test.  Tell your friends.