Can The Breathalyzer Be Beat?
There are two ways to explain the breath test, the scientific way and the easy way?
Scientific: The Intoxilyzer 9000 uses the approach that at specific wavelengths alcohol molecules will absorb light energy and thus it can measure ethyl alcohol concentration in a breath sample. The infrared light wavelengths used are in the 8 and 9 micron regions. In the middle of the Intoxilyzer 9000 is a self-contained heated optical bench. This bench is made up of a heated sample chamber, a pulsed infrared light source, and a pyroelectric detector. The sample chamber has two preheat chambers and a final sample chamber. At one of the chamber’s ends is a light source, a Micro-Electro-Mechanical System based infrared source, which emits infrared light energy. A lens directs this energy through the chamber. A pyroelectric detector is at the opposite end of the chamber and it changes the light source’s heat energy into an electrical response. The sample’s breath alcohol concentration (BAC) is calculated from this electrical response.
The amount of light energy hitting the detector determines the BAC. If no alcohol is present, then the infrared light will pass unaffected through the chamber and creates a certain voltage level. This is normally called “X”. If a sample has alcohol in it, some of the infrared light will be absorbed. The amount of light striking the detector will decrease as the alcohol level increases. This new voltage result is called “Y”. The difference between X and Y will represent the sample’s alcohol concentration. The bigger the difference between X and Y, the higher the BAC will be.
There happen to be other chemical structures which absorb light energy at comparable wavelengths as alcohol. These structures are known as “interferents,” and an example is acetone. The Intoxilyzer 9000 detects a difference in readings at the 8- and 9-micron wavelengths and will halt the test and give a message of “Interference Detected.”
Easy: The Intoxilyzer 9000 isn’t even close to perfect. However, it is the machine the State of Kansas has permitted to be used for evidentiary breath tests. Aside from how it works, if a person submits to the test and their attorney can’t find a way to keep those results from being admissible in court, they will be used against the person. Most juries and judges give great deference to an intoxilyzer test result.
Things to look for when analyzing a breath test
Did the officer observe the proper deviation period before he administered the test?
Both the Intoxilyzer 8000 and 9000 require law enforcement observe the individual who is submitting to the test for 20 minutes immediately before the test is administered. The individual is required to be in the officer’s presence and also deprived of alcohol. The officer is required to ensure that the individual doesn’t put anything into their mouth at any time in any way. If this protocol is not followed, it could be grounds for the breath test to be suppressed.
Was the gas used to calibrate the machine before the test from an approved gas provider?
Every state has a list of approved manufacturers/providers for the “test gas” or calibration gas. Although dozens of companies produce this gas, only a select few are approved by the state. It may be possible to suppress your breath test if the machines were calibrated with non-approved gas.
Was the Intoxilyzer operating correctly?
Every model varies but the vast majority have a heated tube which the individual will blow into. This tube heater tends to malfunction over time. If the machine’s tube was heated improperly then condensation/particulate can congregate in the tube and make the machine have a wrong reading. Each machine should have its maintenance records available and it should be checked to see if it was up to date at the time of the sample. It may be possible to suppress your breath test if the machine malfunctioned or didn’t have the proper maintenance.
Was the officer who administered the breath test certified on the intoxilyzer?
An officer is required to submit an application for “operator certification” through their law enforcement agency before they are certified to administer breath tests. The officer will be required to have a written endorsement from their supervisory officer from their agency. They must have also successfully completed a class on the equipment’s instructions as well as pass the written exam. Then the officer must have been issued a certificate from the secretary of the Kansas Department of Health and Environment. There may be grounds to suppress your breath test if an officer hasn’t met all of these requirements.
When was the officer last certified on the equipment?
A certification to administer breath tests has to be renewed. Usually the certification is only good for two years at a time. In order for an operator to renew their certification they must resubmit an application to do so. They will then undergo more training to keep their certification. It may be grounds to suppress your breath test if the officer does not have up to date certification.
Is the agency who administered the breath test certified by the State?
An agency has to perform a few tasks before they can be certified by the State to have their officers administer breath tests. The agency must show the secretary of the Kansas Department of Health and Environment the following items:
- Specify every breath test device and give its certification;
- Keep a list of all certified operators who will perform breath tests for the agency;
- Confirm that every certified operator only uses approved devices;
- Confirm that every certified operator follows proper protocol;
- Confirm that every machine is tested weekly and the results are provided to the state monthly;
- Confirm that the secretary has completed a yearly inspection of the agency.
It may be grounds for suppression of the breath test if the agency hasn’t done these things or their certification has not been renewed each year.
Was the Intoxilyzer approved by the State and its maintenance records are up to date?
The Secretary of the Kansas Department of Health and Environment must certify each breath test machine. Before certification can occur, the law enforcement agency is required to submit an application and confirm that they intend to use the device for breath alcohol tests. The device must also meet the NHTSA guidelines and performance requirements. The device’s continued maintenance has to conform to the Secretary’s guidelines. If the device needs repairs, those repairs must be done by the manufacturer or a repair shop authorized by the manufacturer. If the device is modified in any way that affects the operating system or alters the device’s precision or accuracy, the device is unauthorized. It may be grounds to suppress your breath tests if the device’s maintenance records were not current or if the device was not approved.
Did the External Standard Check results fall within the acceptable range?
The standard range on both the Intoxilyzer 8000 and 9000 is 0.075 to 0.085. It is grounds to suppress your breath test if the standard check was outside of this acceptable range.
Did the Law Enforcement Agency maintain the proper records?
Each agency must keep records for each Intoxilyzer under their control for three years. They must also keep records of the officers certified to use the machines. Maintenance records and quality control check records (which must be completed weekly) must also be maintained. It may be grounds to suppress your breath test if the agency has failed to keep the proper records.
Was the Intoxilyzer affected by radio frequency interference?
The intoxilyzer is sensitive and can be affected by interference. One such interference is radio interference as the radio frequency emitted by a police radio or cell phone can cause a malfunction of the test. Although the intoxilyzer’s system claims to be able to automatically detect radio frequency interference, it is not fail proof. The results may be affected by radio interference if the officer was using their radio or cell phone during the test administration. It may be grounds to suppress your breath test if it was affected by radio frequency interference.
Did the officer use a new mouth piece on the Intoxilyzer before you took the test?
There is specific protocol which must be followed to administer a breath test on the Intoxilyzer. Test results may be affected if this protocol isn’t exactly followed. Every testing subject is required to use a clean, unused mouthpiece when submitting to the test. Results may be affected if an old or used mouthpiece is used. It may be grounds to suppress your breath test if a new mouthpiece was not used during the testing.
Did the officer read the Implied Consent Advisory before administering the test?
Officers are required to read the DC-70 Implied Consent Advisory aloud to an individual suspected of a DUI if the officer plans on having the person take a breath alcohol test. It may be grounds to suppress the breath test if this advisory was not read to the individual.
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