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Georgia drivers who are suspected of DUI must submit to a chemical test of their blood, breath, or urine at the officer’s request. However, before submitting to any test the officer must first properly advice the motorist of their rights under Georgia law. Georgia chemical testing of the blood, breath, and urine is an incredibly complex area of the law which gives skilled defense attorneys many opportunities to attack the admissibility, and reliability, of Georgia chemical testing. Here, we discuss the many complexities and issues relating to Georgia breath testing, and the Intoxilyzer 5000. Since this area is fraught with issues the easiest way to present this information is through the most frequently asked questions involving breath machines and breath testing.
Which machine is used in Georgia to test a motorist’s breath? Georgia, like many states, uses the Intoxilyzer 5000. Is this machine accurate? This is a very loaded question. The machine has the ability to be accurate, but several factors can influence the machine’s reading. Medical issues such as diabetes, esphogeal hernia, heartburn, liver disease, and even a fever can interfere with the accuracy of the Intoxilyzer 5000. Further, if a person has been exposed to certain substances these substances can interfere with the machine’s accuracy. Toluene, acetaldehyde, and acetone may interfere with the Intoxilyzer 5000. Also, people who are on certain diets or medications may have abnormally high results. Even hyperventilating will yield skewed results on this machine. Certain substances in a subjects mouth such as tobacco, mints, lip balms, denture adhesive, braces, bridge work, and other substances may effect the accuracy of the breath testing machine. The machine may also be affected by Radio Frequency Interference (RFI) from radio waves emitted by the officer’s walkie-talkie, or cell phones. The Intoxilyzer 5000 also can not distinguish between mouth alcohol, and actual blood alcohol. Additionally, the Intoxilyzer 5000 allows itself a variance of .20 between the 2 breath samples. For example, if a subject blew a .099 and a .079 the machine considers itself to be within acceptable parameters of accuracy. A 20% variance rate to be considered within parameters is not very accurate, and would only be considered accurate by a government agency. The bottom line is the Intoxilyzer 5000 is just a machine, and all machines screw up from time to time for no known reason. I often explain this to juries using the computer and the toaster. Have you ever clicked on the print button on your computer screen, and nothing happens? Then, a few seconds later you click on the same print button and your printer spits out exactly what you wanted it to. Or, perhaps, one morning you put two slices of bread in the toaster, push the lever down, and a few minutes later 2 pieces of burnt bread pop up. Then, you put 2 more pieces of bread in your toaster, push the lever down, and a few minutes later two perfectly toasted pieces of bread emerge. Can we explain why this happens? No. All we can say is that for whatever reason machines screw up from time to time. The Intoxilyzer 5000 is a just a machine like any other, and it will malfunction for the reasons listed in the previous paragraph, and because it is just a machine. How often is the Intoxilyzer 5000 checked for accuracy? Under Georgia law the Intoxilyzer 5000 must be checked for accuracy once a quarter. Once every 3 months is not much calibration testing for a machine that has so much hinging on its accuracy, but the story gets worse. Since the machine is only required to be checked once a quarter sometimes a machine will be check on the first day of one quarter, and the last day of the following quarter. In this scenario, the machine has still been checked properly under Georgia Law, but the machine has had six months of operation between calibration checks! These practices favor inaccuracy and unreliability in breath testing. Is there anything else the State of Georgia does that may interfere with the accuracy of the Intoxilyzer 5000? You bet! When the Intoxilyzer 5000 is checked quarterly the samples used to check the machines are not preserved, therefore proper calibration at the time of inspection can not be verified. The State of Georgia also had the option to buy breath machines that would perform a full calibration before each breath sample, but declined to do so because these machines are more expensive. As a matter of fact, each Intoxilyzer 5000 has a huge hole in its containment unit where the calibration solution is supposed to be attached. The Intoxilyzer 5000 has the claimed ability to filter out toluene, acetaldehyde, and acetone, however, when the machines are inspected only the acetone filtration system is routinely checked Someone told me the Intoxilyzer 5000 runs a self diagnostic check before each breath sample to ensure the machine is working properly. Is this true? Before every breath sample is taken, the Intoxilyzer 5000 runs a self check and displays “Ok” if the machine doesn’t detect any problems with itself. However, up to 34 different critical pieces of the Intoxilyzer 5000 can be removed from the machine, and the machine will still display an “Ok” after the self diagnostic check. In short, the self diagnostic check is worthless. Is the Intoxilyzer 5000 a good breath testing machine? When Georgia was preparing to update it’s state breath testing machine several machines were researched and studied. In 1994, the Intoxilyzer 5000 beat out the Datamaster II to be the sole breath testing machine used in Georgia. Georgia officials still claim that the Intoxilyzer 5000 is the “Cadillac” of breath testing machines. However, this Cadillac is missing a windshield, 4 tires, and a front seat. Just like any other government, the government in Georgia has a budget and likes to save money. In doing so, it left some very important options off their “Cadillac” Intoxilyzer 5000. First, the Georgia Intoxilyzer 5000 can easily be fitted with an adapter that would capture and retain every subject’s breath sample. These samples have a 98% accuracy rating for up to 2 years. However, Georgia and the GBI opted not to have this important option installed on the Georgia Intoxilyzer 5000. The second option Georgia did not have installed on its Intoxilyzer 5000 is a “flow rate” to measure the volume and flow of the subject’s breath. This option is important to prove to officer’s that the subject is blowing into the machine properly, and is not merely pretending to blow. Again, Georgia decided not to purchase this technology. Worst of all, the Intoxilyzer 5000 is 100% computer friendly, and has a Z80 microprocessor chip and serial port on the back of the machine. This means a complete history of each test, each machine’s defects, and each machine’s aborted tests could be kept by the GBI simply by downloading the information via a modem, or through an onsite computer. The GBI has taken no steps to record these problems because such proof of failures, test errors, and trends of error would destroy the machine’s credibility. In summary, one’s man Cadillac is another man’s lemon. Is the Officer who administers the test well trained on the Intoxilyzer 5000? No. The Intoxilyzer 5000 Operator’s Course is a 16 hour, 2 day course. The entire first day is devoted to basic human biology, and the students don’t touch the machines until the second day. Once certified, the “refresher” course to keep your certification is only 4 hours. In Florida, where the Intoxilyzer 5000 is also used, their operators are required to go through a 40 hour course. The Intoxilyzer 5000 Operators are not taught how the machine works. They have no knowledge of the inner workings of the machine, or how to repair it. This lack of knowledge is done purposefully by the GBI Department of Forensic Sciences. They do not want these operators to know the inner workings of the machine because they don’t want DUI attorneys to able to cross examine these operators on the finer points of the Intoxilyzer 5000. All the operator is taught to do is turn on the machine, set up the machine for a test, and then administer the test. Anything beyond these three simple acts the operator simply does not know. Who in Georgia repairs the machines when they do not work? No one in Georgia is certified to repair the Intoxilyzer 5000 when it needs repair. Only the Intoxilyzer 5000’s manufacturer, CMI, may repair the machine. Even the officers who certify that the machine is functioning properly may not repair the machine. The men who certify that these machines work properly may not repair them because these operators don’t know how the machines work. I gave 2 breath samples into the machine, which one is consider my actual BAC by the state? All breath tests require the subject to give 2 samples. Of those 2 samples, the lower of the 2 samples is considered to be your BAC for purposes of your DUI. For example if you blew a .080 and a .074 then the .074 will be used by the state. Again, if you blew a .194 and a .182 then the .182 will be your BAC. I gave one breath sample, and then refused to give another. What does this mean? In this scenario the one breath sample you did give will be used as your BAC. You will not be charged as having refused the test because you did give one sample. Will recent use of mouthwash or other substances skew my results on the Intoxilyzer 5000? The Intoxilyzer 5000 operators will tell you that mouth alcohol will not be detected by the machine, but this is simply not true. Many experiments have shown that the Intoxilyzer 5000 will detect and register mouth alcohol. When I went through Intoxilyzer 5000 training, our instructor said the machine would not register his use of mouthwash. He then took a swig of Scope, swished it around, spit it out, and blew in the machine. Instead of the machine discounting the mouth alcohol and reading .000 the machine detected the Scope and registered .280. Aside from mouthwash, mouth alcohol can interfere with the results of the Intoxilyzer 5000 in other ways. If a subject burps, vomits, etc. within a 20 minute period before being tested on the machine any alcohol left in the mouth from the belch or vomiting may skew the subject’s test results upward. Just like with the Scope the machine is not supposed to detect this mouth alcohol, but there is often a huge gap between what the machine does in theory and how it performs in reality. Is it true sucking on pennies will help me beat an Intoxilyzer 5000 or Breathalyzer? No, this is not true. Lots of people have heard this urban legend, and all that will happen is the officer will book the pennies into evidence and the jury will hear what you were doing. The rumor behind this legend is that the machines read electrical current inside your mouth to help determine your BAC level. The copper from the pennies is supposed to absorb this electricity so the machine won’t have anything to detect. Both the legend, and the way the machine works in these stories is false. I had a fever when I took my breath test. Could this have affected my results? Yes. A 1 degree change in body temperature can affect the breath result by an average of 6 to 7%. A person who is running a fever that is 2 degrees high could have a result that is off by 12 to 14%. In California, their state’s breath machine records each subject’s body temperature at the time of testing. In Georgia, the Intoxilyzer 5000 does not do this. The Intoxilyzer 5000 assumes a constant body temperature for all subjects at 98.6 degrees. How does a breath machine tell how much alcohol is in my blood? The Intoxilyzer 5000 operates on the principle Henry’s Law. Henry’s Law states that the concentration of a material in a gas state above a liquid containing the dissolved material will be proportional to the concentration of the material in the liquid state. More plainly said, the gas above a liquid will have the same concentration of a substance in it as the liquid beneath the gas. How does this apply to you and your BAC? If you’ve been drinking, alcohol vapors (the gas) will come into contact with your blood (liquid) in your lungs. While in the lung, the alcohol diffuses across the one cell thick semi-permeable membrane of the capillaries into the air of the lung. The higher the concentration of alcohol in a subject’s blood the greater the proportional concentration of alcohol in the air in the lung. When a subject breathes this air into the Intoxilyzer 5000 it measures this concentration. In order for the Intoxilyzer 5000 to be able to apply Henry’s Law to breath testing the machine has to assume many constants about the human body. For instance, the Intoxilyzer 5000 assumes a 2,100 to 1 ratio in converting alcohol in the breath to estimates of alcohol in the blood. However, this ratio varies from person to person with a range of 1,900 to 2,400. This number not only varies among people, but also varies in an individual over time. Some breath machines assume a hematocrit of 47%. However, the heatocrit level in men ranges from 42 to 49% and ranges 37 to 47% in women. The Intoxilyzer 5000 also assumes an average body temperature of 98.6 degrees (see question above). As we all know, not every person is the same. Having a breath machine that assumes all men, women, and people in general are all the same is discriminatory. Which test is better, breath or blood? A blood test is generally thought to be more accurate. Officers almost always ask for a breath test because it is more convenient for them. However, if you submitted to a state administered blood test there is a good chance your numbers have been skewed or compromised. The best blood tests come from independent labs that test the actual blood, with properly calibrated equipment, and properly store their specimens. |