Alcohol & Drugs: DUI, DWI First DUI, AKA first time ever arrested

[L67Powered]

I got a dui a few weeks ago.

I blew a 0.10. This was using an intoxilzyer 5000 I believe.

I want to prove that the police did not calibrate the machine recently or did not perform maintenance on the 15 year old machine.

The tests were carried out, Directions per the manual were followed correctly.

I think I need to file a motion that has the records on the machine and not sure exactly sure how to do this or when in the process to do this. I have arraingment next month, at this point I will request a jury trial.

This is the only defense I can come up with since the cops followed procedure very well. I'm not sure what avenues to try.

They also threw out some other charges like wreckless driving, open container, etc. I just got the one ticket. I'd like to get it knocked down to wreckless driving.

I cant afford a lawyer and have been denied a public defender, I do make ok money but 3/4 of my income each month goes just toward rent and utilities (no joke!)

Therefore I'm trying to fight it on my own. Just looking for advice on how to get records and such to look over and see if they did everything right on the breathalizyer side.

 

[CdwJava]

If you want to make a technical case by challenging the maintenance of the device, you will best be served by an attorney.

Do YOU know how often the device is required to be calibrated in your un-named state? Or, how often it is supposed to receive maintenance? How about, who even HOLDS those records?

For instance, when I worked in San Diego the Intox 5000 that was at the jail was calibrated and maintained by the county crime lab, the one at my agency was calibrated and maintained by the state DOJ office out of San Diego.

You may have to do some research and find out about the discovery laws in your state and how to properly make a request for discovery and who to serve the request on. And, even if you manage to do that properly, you will have to interpret the information to show the device was improperly maintained ... that may well take expert testimony. Unless the law says it must be calibrated every 10 days or it is invalid, and the records say it was 20 days, you're likely toast.

You say you cannot afford an attorney ... well, how much more is losing the case going to cost you in the long run?

- Carl

 

[DMarklin15]

Agreed, you really need to know your stuff if you're going to challenge calibration procedures and would be best served by an attorney.

Also keep in mind that if you were successful as far as the test, that doesn't mean that you're going to get out of a DUI. At least in my state, you can still be found guilty for DUI, but will not have the additional charge of the prohibited alcohol content as long as the officer can articulate his observations.

We all make mistakes, but sometimes it's better to stand up and admit that you screwed up and request for help instead of looking for a loophole. Being that it's a first offense, you may have an easier time with it compared to a repeat offender. That's just my opinion, Good Luck.

 

[DMarklin15]

I also want to mention that I'm not an attorney, so please don't take that as legal advice, just my opinion. Good Luck.

 

[Scooterdog]

Bill Powers
Law Office of Bush & Powers:

"Having been requested to lecture on the subject of "DUI Law," I was given discretion to choose any subject that might be interesting to attendees. Once we got over the DUI / DWI discrepancy, determining what would prove a meritorious topic for discussion was substantially more difficult than imagined. How does one, in an unobtrusive and unassuming manner, assist in educating their peers?

In the process, I was finally forced to stop worrying about what others might think and truly come to task asking myself, "What is something you honestly don't understand as well as you might wish?" Obviously there are countless prosecutors, attorneys, judges and law enforcement officers who possess a substantially greater wealth of knowledge in the area upon which I am about to write. In preparing the following materials, it was my primary hope to learn. If you gain some additional insight into the area of law or are otherwise allowed to add one more tool to your skills set, then this exercise was a success.

Answering my initial query, ideas immediately came to mind, to wit: How on earth does the Alcosensor and its progeny work? What are the implications of the technology? Is it infallible? Does science play any part in the law? Does law play any part in the science? What are the processes by which operators are trained? Does the manner in which the machine is utilized make a difference? Can the results be skewed, either intentionally or unconsciously? Why are we so reliant upon the science of alcohol screening?

THE LOGIC
Relatively recent interpretations in the caselaw pertaining to Probable Cause for Arrest and the use of technology have made the application of alcohol screening / testing devices one of the two most important issues in the impaired driving practice genera. One must recognize the caselaw within the last decade is truly an "interpretation" of existing precepts, because to borrow the phrase, "truly there is nothing new under the sun." Probable cause has not changed; yet, the method for arriving at what a reasonably, prudent person might believe has certainly become more complicated.

In some instances the technology is ahead of the law or perhaps better said, the understanding of the individual members of the North Carolina General Assembly and the Courts. Other examples exist whereby statutory and judicial acceptance of certain scientific methods is not only justified, but also morally compelling.

The second, if not equally important, area of import is the administration of psychophysical dexterity tests or what has commonly become known as Field Sobriety Tests (FST). Similar in nature or utilization, roadside and laboratory simulated physical dexterity tests work hand-in-hand with alcohol "screening" devices. In that most judges, and caselaw for that matter, invite a "totality of the circumstances" type approach in reviewing evidentiary issues, neither modus operandi is quite as effectual without the independent confirmation from the other unrelated source.

Perhaps that is an admirable quality in the heart of man; to be equally stringent and not overly trusting of one methodology over another in accusing a fellow citizen of violating the law. There exists an inherent distrust for things mechanical, technical or non-sentient. Living and breathing in the 21st Century, daily experience proves machines are regularly fallible. Whether it is the computer that crashes without explanation or a cellular phone that inexplicably cuts off, we all know technology has its limits. None wish to be relegated to insignificance by machinery, lest Charles Orwell be proved right.

Humans too are prone to discrepancies and inconsistent behaviors. First, in that no two individuals are truly alike, finding a common understanding or defining basic mores can in themselves create dissention. Secondly, humans are subject to the nature of being human. . .or imperfect.

The machines of our bodies and minds can easily be manipulated by emotion, distrust, racism or dislike. We may be tired, or bored, or angry or jovial; all of which can control the manner in which we respond to others and perform our daily tasks. An interesting question posed might be, "Are the mistakes of humans greater than, less than or equal than that of machinery?" The answer is, it depends. Both are equally reliant upon the need for consistent, wholly objective manipulation of stimulus to obtain repeatable results. In its most simple terms, that is the very definition of the so called "scientific method."

Finally, there is a blending of technology and humanness, wherein there exists an increasingly inexorable nexus. If it can be agreed both forms of observation are at least in part flawed per se, the intermingling of their respective abilities most certainly must be prone to interpretation and fallibility. Machines and the data they produce are only as good the human entering information or conducting the experiment. Humans can similarly misapply or misinterpret the results of an allegedly scientific experiment.

 

[Scooterdog]

THE PLAYERS

The biggest fault of the "us-versus-them" mentality within our system of confrontational judgment is an over-reliance on certainty. Defense counsel, seeking to zealously represent clients, commonly become overly consumed with the foibles of mechanized testing. Knowing some level of variance exists in all experimentation, they are too willing to entirely discount the relevance of proven, scientific research methods. They are certain man should not be judged in any fashion by a machine.

Prosecutorial-minded parties err on the side of blindly trusting technology, relying on the semantics of an electrochemical response of an "instrument" rather than a "machine." Somehow the use of one term over another is necessary to conjure thoughts of reliability or sophistication of data, which per se reveals the distrust of things non-human. Instead of acknowledging the possibility for inconsistency and ignoring things such as fuel cell fatigue, they erect a false idol to digital readouts.

The legislative branch is not without fault, enacting laws pertaining to the acknowledgement of the science but abdicating true responsibility for its application. Rather than educate itself, it empowers a non-elected, non-accountable government agency, to wit: the Department of Health and Human Services, to endeavor the truly legislative task of administering training and testing programs.

Finally, the judicial branch is left with the unenviable responsibility of insuring fairness to both the citizenry and the science. Relegated to interpreting the intent of an schizophrenic will such as the North Carolina General Assembly, Courts must conform themselves to the concept of stare decisis or be branded judicial activists.

As one who presently defends the accused, I too share some fault in why our impaired driving justice system is operating in its present quagmire. For over a decade, I have adopted the all too common practice of acting like I know a whole lot more about the science of alcohol testing devices than I truly understand. Without the intent or desire to sound condescending, we all could benefit from rolling up our respective sleeves and learning the basics. Put in an elementary fashion, "What are we even looking for?"

BJECTIVE OBSERVATION & DESCRIPTION

In the most simple of terms, with regard to impaired driving matters, what is truly at issue is the observed thing. That thing is a speculated level of impairment due to the ingestion of a chemical substance known as ethanol; a difficult thing indeed to describe or otherwise qualify.

Unlike most other areas of law, excluding maybe DNA or gene mapping, no other area of practice shares such a growing connection with science and technology. Frankly, it is difficult to tell why we have become reliant on the mixing of humanness with machines. Why has there been an explosion in the last four (4) decades of alcohol detection devices?

That issue might well be left with the philosophers of our time, as part of the overall question regarding the impact of technology on culture. One company, Intoximeters, Inc., came up with as good as reasoning I have heard for the proliferation of alcohol testing devices:

In the 19th century, law enforcement officials dealt with the problem of alcohol abusers by imprisoning them until they were sober. In the 20th century, the advent of high-speed transportation and complex machinery gave high priority to alcohol testing and screening. Automobiles traveling at 90 feet per second on the freeway are unforgiving of drivers with alcohol impairment. The same is true for a 300-passenger aircraft guided by an alcohol-impaired pilot attempting to land under minimum-visibility conditions. There is very little margin for error. People who operate complex equipment with their judgment impaired by alcohol may not only be a danger to themselves, but impact the safety of others.

Inherent in their logic, Intoximeters, Inc., as do all other like producers of alcohol testing devices, assumes the fact that humans cannot be trusted to independently observe, in an objective fashion, and later describe the effect alcohol had on another. At the same time, the National Highway Transportation Safety Administration (NHTSA) is not keen on becoming overly reliant on alcohol screening devices. The NHTSA states in its DWI instructional manual, "The PBT (Preliminary Breath Testing) result is only one of many factors the officer considers in determining whether the suspect should be arrested for DWI. It should never be the sole basis for a DWI arrest."

Because we are discussing herein alcohol related science, the other white elephant in the room must presently be ignored: the implications of introducing other substances into the body that may or may not affect the impact of ethanol on the brain. We are going to focus on the singular issue of ethanol impairment.

RESPIRATION SIMPLIFIED

To understand the methods by which alcohol is tested, one must possess a rudimentary understanding of the incredible mechanism known as the human body. Without doubt, it is the singularly most complicated machine ever created. It touches all forms of science, including but not limited to, mechanical and electrical engineering, physics, chemistry, and biology.

We are interested in an important aspect for any living thing: Respiration. For humans and other complex creatures, it is the basis for all life. Utilizing an extraordinarily simplified saying, the operation of respiration is essentially "in with the good air and out with the bad." With every breath we take, air enters the trachea, which is also known as the windpipe.

Once within the trachea, the airflow is split into two (2) distinct branches. Those branches are known respectively as the right and left primary bronchus tubes. Thereafter air is further divided and subdivided into millions of tiny air pathways that make up the lungs.

Each breath ends by reaching tiny air sacs known as alveoli through the respiratory and terminal bronchioles. Alveoli are enmeshed or otherwise covered by tiny capillaries. It is in this area that respiration and circulation interact. Respiration, as one likely realizes, applies generally to the process of inhaling and exhaling.

Circulation refers to the flow of blood throughout the body. Breathing in, we draw needed oxygen to the base of our lungs. The alveoli and capillaries are intermeshed, to allow transfer of oxygen (O2) and carbon dioxide (CO2). The surfaces between the alveoli and capillaries are so tiny, the chemical compounds can pass readily between the respective membranes.

Blood is actually a fluid made red by billions and billions of tiny cells floating in a stream of plasma. "Red Blood Cells" (RBC's) are produced within the marrow of our bones. These life-sustaining cells absorb CO2 throughout every system within the body. As it circulates past lungs, the CO2 is expelled. O2 is simultaneously absorbed.

 

[Scooterdog]

The purpose of breath testing devices is to obtain a representative sample of the different chemicals expelled from the bloodstream and into the respiratory system through the alveoli. Put simply, we seek to capture what was most recently floating about the blood stream inside the red blood cells. In addition to CO2, we exhale other poisons that with regard to this paper, necessarily includes C2H5OH (ethyl alcohol).

WHAT IS ETHANOL?

A very easy chemical compound to produce, it was possibly man's first real chemistry experiment. All one must do is accidentally step on a grape and the process is begun. Everything else necessary to convert sugars into alcohol is within the grape and its skin.

Beer lovers might be pleased to discover a malt-like soup (think thick beer) likely pre-existed wine as formally processed beverage. Historians suggest grain, such as barley, was utilized as a staple for breads and porridges. When barley germinates and is later dried, it becomes less perishable and sweet. It also thereafter is known as malted barley. That became beneficial in a time before refrigeration. With the assistance of a tiny little organism known as yeast, which is naturally abundant, our obsession with alcohol began.

The alcohol found in alcoholic beverages is ethyl alcohol or ethanol. The molecular structure of ethanol looks like this:

H
H3C – C – O – H
H

"C" is Carbon
"H" is Hydrogen
"O" is Oxygen


HOW DOES ETHANOL ENTER THE BLOOD?

As one eats or drinks, the material ingested travels down the back of the throat through a tube known as the esophagus. One should note the esophagus is NOT the same as the trachea. If you have ever inhaled while drinking a glass of water or choked on a piece of food, you know the tubes do share some common space.

Alcoholic beverages are swallowed, or allowed to flow down the esophagus into the stomach and later the intestines. About 20% of the alcohol is absorbed in the stomach, with the remaining 80% being absorbed in the small intestine. The efficacy of the drug, or how fast it is absorbed, depends upon several factors including how powerful or concentrated the ethanol, whether carbonation is present and whether there is something in the stomach to slow the process.

Upon absorption, alcohol enters the blood stream and dissolves in the fluid, or watery portion of the blood. The cardiovascular system, through the blood, promulgates the alcohol throughout the body. Alcohol then enters and dissolves in the water inside each tissue of the body, excluding fat. Due to its chemical composition, alcohol cannot be dissolved in fat.

A small amount is absorbed into the bloodstream in the mouth and through membranes that make up the piping of the gastrointestinal tract. The largest percentage of alcohol is absorbed through finger-like "villi" which line the walls of the small-intestine.

Villi protrude from the interior walls of the intestine vertically into the pathway of the digested substance. Such unique construction creates substantially greater surface than a perfectly smooth tube. With a greater surface area, an exponentially more efficient process of absorption exists.

As stated previously, ethanol is extremely water-soluble. The fluid of the blood, which is essentially water itself, therefore distributes alcohol with great alacrity throughout the body. Body organs with greater water content are more susceptible to being infused with alcohol.

The brain is one such tissue. One reason some individuals are particularly affected by ethanol is their relative body water concentration. Smaller individuals, or those with a lower overall blood volume, are more prone to impairment. Larger people, with correspondingly high blood volume, require greater amounts of alcohol to feel the effects.

For example, an 150 pound person who consumes one beer, one glass of wine or one shot of liquor (all of which contain somewhere in the range of 15 cc's of ethyl alcohol), will have an approximate BAC of .02%. Smaller people, who may have as much as one-half of the water weight as the 150 person, might have an BAC of .04%.

Pure ethanol is not in most alcoholic beverages, for example beer contains between 4 % to 6 % by volume, wine is slightly higher at 7% to 15% and distilled spirits or liquor is the highest varying between 40% to 95%.

 

[Scooterdog]

HOW ALCOHOL IS ELIMINATED FROM THE BODY

Alcohol leaves the body in three general ways, although a fourth manner is possible through something cryptically referred to as "reverse phagocytosis" (throwing up). The three primary ways ethanol leaves the body is through the kidneys (5%), through the lungs (5%) and through the liver, which captures the remaining 90%.

Metabolism is the body's process of converting ingested substances to other compounds. Metabolism involves a number of processes, one of which is referred to as oxidation. Through oxidation in the liver, alcohol is detoxified and removed from the blood, preventing the alcohol from accumulating and destroying cells and organs. A minute amount of alcohol escapes metabolism and is excreted unchanged in the breath, in the sweat and in urine. Until all the consumed alcohol has been metabolized, it remains a risk to the brain and other tissues.

The liver can metabolize only a certain amount of alcohol per hour, regardless of the amount that has been consumed. The best way to visualize it is to think of a funnel. Only so much water can through, despite the rate at which one pours it.

The rate of alcohol metabolism within the liver depends, in part, on the amount of metabolizing enzymes in the liver, which varies among individuals. In general, after the consumption of one standard drink, the amount of alcohol in the drinker's blood peaks within 30 to 45 minutes. That is about how long it takes to be ingested, absorbed and promulgated through the aqueous blood stream.

Alcohol is metabolized more slowly than it is absorbed. The old saying, "Wine is fine, but liquor is quicker" is true to a point. Given the greater molar (M) strength or concentration of liquor, a smaller amount is needed to infuse the blood stream for the desired effect. Once the liver reaches it peak metabolism rate, the remaining ethanol continues to be circulated to the brain.

The average person, if one exists, can rid themselves of 0.5 ounces (15ml) of alcohol per hour. As such, the human body can process approximately one 12 ounce bottle of beer, or one 6 ounce glass of wine, or one "shot" of alcohol. Given the variable levels of ethanol as described infra, the processing engine can take longer. Chronic alcoholics may (depending on liver health) metabolize alcohol at a significantly higher rate than average. Interestingly enough, the body's ability to metabolize alcohol quickly tends to diminish with age. That's why grandma's single glass of wine can lay her flat.

The breakdown, or oxidation, of ethanol occurs in the liver. An enzyme called alcohol dehydrogenase strips electrons from ethanol to form acetaldehyde. Another enzyme, called aldehyde dehydrogenase, converts that acetaldehyde, in the presence of oxygen, to acetic acid. Acetic acid is the main ingredient of vinegar. One who has consumed alcohol could be correctly technically deemed, "full of piss and vinegar."

It's not how many drinks that you have, but how much alcohol that you consume. As you can see from the chart below some drinks are more potent than others.


Alcohol Content of Some Typical Drinks
Drink Alcohol Content
Manhattan 1.15 oz. (34 ml)
Dry Martini 1.00 oz. (30 ml)
Malt liquor -12 oz. (355 ml) 0.71 oz. (21 ml)
Airline miniature 0.70 oz. (21 ml)
Whiskey Sour/Highball 0.60 oz. (18 ml)
Table Wine - 5 oz. (148 ml) 0.55 oz. (16 ml)
Beer - 12 oz. (355 ml) 0.54 oz. (16 ml)
Reduced Alcohol Beer 0.28 oz. (8 ml)

Mixed drinks are based on typical drink recipes using 80 proof liquor.
The amount of alcohol in actual mixed drinks may vary.

Alcohol Content (in Percent) of Selected Beverages

Beverage Alcohol Content (%)
Beers (lager) 3.2 - 4.0
Ales 4.5
Porter 6.0
Stout 6.0 - 8.0
Malt Liquor 3.2 - 7.0
Sake 14.0 - 16.0
Table wines 7.1 - 14.0
Sparkling wines 8.0 - 14.0
Fortified wines 14.0 - 24.0
Aromatized wines 15.5 - 20.0
Brandies 40.0 - 43.0
Whiskies 40.0 - 75.0
Vodkas 40.0 - 50.0
Gin 40.0 - 48.5
Rum 40.0 - 95.0
Aquavit 35.0 - 45.0
Okolehao 40.0
Tequila 45.0 - 50.5

The concentration of the drinks that one ingest can have a slight effect on the peak alcohol concentration due to the differences in absorption rate of different concentrations of alcohol.

Alcohol is most rapidly absorbed when the concentration of the drink is between 10% and 30%. Below 10% the concentration gradient in the gastrointestinal tract is low and slows absorption and the added volumes of liquid involved slow gastric emptying. On the other hand concentrations higher than 30% tend to irritate the mucous membranes of the gastrointestinal tract and the pyloric sphincter, causing increased secretion of mucous and delayed gastric emptying.

Food taken along with alcohol results in a lower, delayed blood alcohol concentration peak (the point of greatest intoxication). There are two major factors involved in this phenomenon. First, because alcohol is absorbed most efficiently in the small intestine, the ingestion of food can slow down the absorption of alcohol into one's system.

The pyloric valve at the bottom of the stomach will close in order to hold food in the stomach for digestion and thus keep the alcohol from reaching the small intestine. While alcohol will be absorbed from the stomach it is a slower and less efficient transition.

Second and equally important is the fact that alcohol elimination rates are inversely proportional to alcohol concentration in the blood. Therefore the suppressed levels of alcohol due to food ingestion cause the body to eliminate the alcohol that is absorbed at a faster rate.

The type of food ingested (carbohydrate, fat, protein) has not been shown to have a measurable influence on this affect but the larger the meal and closer in time between eating and drinking, the greater the diminution of peak alcohol concentration. Studies have shown reductions in peak alcohol concentration (as opposed to those of a fasting individual under otherwise similar circumstances) of 9% to 23%.

 

[Scooterdog]

TOLERANCE

Tolerance is defined as the diminution of the effectiveness of a drug after a period of prolonged or heavy use of that drug or a related drug (cross-tolerance).

Two types of tolerance are relevant with alcohol. 1) Metabolic Tolerance occurs when the body oxidizes, or metabolizes, ethanol at a higher than standard rate. In some instances, chronic alcoholics can metabolize ethyl alcohol 72% faster than a normal adult. Severe alcoholic can actually achieve peak blood alcohol concentrations with a lesser amount of alcohol.

2) Functional Tolerance occurs when the bodily organ actually becomes desensitized. In some instances, documented by studies, abusers of alcohol can tolerate as much as two times the amount of alcohol with the same level of affect. It is difficult to determine the level of functional impairment, as each individual develops a different level of tolerance.

GENDER & AGE DIFFERENCES

As stated previously, the amount of water each person possesses will affect the concentration or Molar (M) strength of ethanol within the bloodstream. Certain body types possess greater and lesser relative percentages of water.
A sweeping generalization is to state women tend to have a lower percentage of water weight and a higher percentage of fat.

As such, a woman would be more greatly affected by the same amount of alcohol as a man due to the greater ethanol concentration. Women with a lower body fat percentage, such as a professional athlete, would similarly have a greater water weight than a rotund male.

The amount of water the body possesses as we age becomes lower. Even without an increase of weight, elder adults slowly "dry out." With a lesser amount of overall water within the system, a smaller amount of alcohol is increasingly potent. The following table is a good reference point for determining the differences between gender and age.

Average Total Body Water

Age Male Female
18 to 40 61% 52%
over 60 51% 46%

Another interesting disparity among the sexes is the apparent ability of women to more efficiently eliminate from the body. Frankly, the reasons for such are unknown. No scientific study has conclusively proven whether women metabolize alcohol more easily through the liver, excrete it through the skin or exhale it through respiration. Some studies have shown woman can rid their bodies of alcohol at a rate of 10% faster than men.

THE ALCOSENSOR: HOW IT WORKS

The AlcoSensor uses an electrochemical fuel cell. Most experts believe the fuel cell converts ethanol to acetic acid through a chemical reaction. If you recall, that is what the liver does in the human body during metabolism. Again, acetic acid is the chief component of vinegar.

During the testing, the conversion produces two free electrons per molecule of alcohol. The upper surface of the fuel cell is where the transfer of electrons takes place. Hydrogen ions, which carry a positive charge (H+) are released in the process. That positive charge is transferred to the lower surface of the fuel cell.

Due to the reaction process, the upper surface of the plate becomes inundated with excess electrons. The lower surface ends up with too few electrons. Once the two surfaces are connected, a current of electricity flows to equalize the respective surface charges. This current is a direct indication of the amount of alcohol consumed by the fuel cell. Measuring the electrical current created, testing devices establish a numerical value. With increasing levels of ethanol the current strength is increased.


Because of the expense of Infra Red (IR) technology (which is incidentally used on the Intoxilzyer 5000), companies that produced breath sampling machinery began to perfect less sophisticated, yet reasonably reliable machines.

An English scientist is credited with discovering the fuel cell in the early 1800's. Into a bath of acid, sulfuric to be exact, he placed two platinum bars or electrodes. He then supplied hydrogen to one electrode and oxygen to the other electrode. A current of electricity was created, which is now known as a fuel cell.

In the 1960s, researchers at the University of Vienna demonstrated a fuel cell that reacted only to ethanol. This evolved into the present-day cell used in all fuel cell based breath alcohol measurement instruments.

The fuel cell within the Alcosensor utilizes platinum electrode, known as "platinum black." Impregnated within the electrode, there is a layer of an acidic solution. The diagram supra is drawn indicating a "porous layer with electrolyte."

A porous surface is one in which substances can generally pass through easily. At the electron size, it works roughly like a screen on the front porch door. The porous surface is mixed with an electrolyte. Electrolytes are a general category of chemicals that allow for the efficient transfer of energy. Essentially, they allow electrons to pass between substances without stealing or adding electrons during the transfer.

The key to alcosensor testing is to utilize chemical compounds that create an electrical current only when exposed to C2H5OH. That unique chemical reaction transfers some of the positive electrons from the ethanol, to the top platinum plate, through the porous electrolyte zone, down to the bottom platinum plate. The difference in charges between the platinum plates is then measured.

Electrochemical devices have become increasingly more reliable since the 1970's. Many of the initial problems with the technology did not necessarily involve the science of the fuel cell itself. Instead, the method of obtaining the requisite sample and allowing its release were problematic.

Some fuel cells were "tricked" or indicated false-positive results because previously sampled ethanol was allowed to leak back into the testing chamber. Other machines were plagued by the inability to measure the electron variance between the plates. In some instances, the method of measuring the electrical current used too much energy.

Other devices could accurately detect high levels of ethanol, but were completely inaccurate with lower percentages of alcohol. Given the nature of the driving while impaired laws, minimal differences could have monumental effects. Fuel cell response now covers a complete range of alcohol concentration expected in breath. This range is from 5 to 900 parts per million (PPM) of ethanol in the sample.

When a precise volume of breath sample is passed across a fuel cell, the amount of electricity from the cell rises from zero to a peak number. As all the electrons are used up or transferred, the electrical charge then decays back to zero.

The Intoximeters, Inc., AlcoSensor III uses what is called a "peak measurement technique." Of the different methods available, it is likely the most accurate. Its major flaw, if it may be considered such, is the amount of time it takes to convert the electrical current. Added time is the result of increased accuracy.

For all breath alcohol measurement devices, it is critical to obtain a deep lung sample. In the past, most instruments using fuel cells introduced a sample across the fuel cell by drawing this sample through a small port connected to a pump mechanism. That process caused problems and frequently unreliable test results.

Intoximeters, Inc., came up with a unique mechanism for drawing deep lung breath samples in its AlcoSensor III, AlcoSensor IV and AlcoMonitors. It works similarly to a piston within an engine. The down-stroke draws in the air, which amounts of approximately 1cc. All alcohol drawn in by the sampling stroke is continuously exposed to the fuel cell surface.

There are only two stroke operating positions. With such simplicity, the sampling is very fast and relatively consistent. The alcosensor, after having confirmed no residual alcohol remains in the sampling chamber, is "cocked" for the test. Simultaneously the port, or opening through which the sample is drawn is sealed off with suction, thereby creating somewhat of a vacuum over the top platinum surface.

COMPARITIVE ANALYSIS & INCORRECT RESULTS

Alcohol specificity in testing remains an issue in fuel cell technology. In the early 1990's, investigators at the University of Tennessee at Memphis measured the response of fuel cells to substances other than ethyl alcohol. The list was created based upon those chemicals scientists anticipated might be present at the time of testing.

The instruments used in the study were the AlcoSensor III and AlcoSensor IV, as created by Intoximeters, Inc. During testing, different chemicals were introduced to the fuel cell electrode surfaces. The tests were broken down into two, separate phases. In Phases I and II, the investigators used an AlcoSensor III and an AlcoSensor IV connected in series.

Phase II used alcohol concentrations of 0.1 gm/dl to test the response of both instruments separately to ethanol, methanol, and isopropanol. Essentially, they tested the machines both to the know concentration of substances introduced and compared the repetitive machinery to one-another. The tables below show an abbreviated listing of the investigation's results.

Realistically, the alcohol specificity of the fuel cell is quite efficient. As the test results indicate, the electrochemical response is extremely accurate and not easily subject to misidentification. That is not to say the machine is infallible. There are instances when the machine will indicate positive tests results, even when the subject has not consumed an alcohol beverage. The two most common

Phase I / Test Results Substance Vapor Concentration AlcoSensor III Response AlcoSensor IV Response
(mg/l) (gm/dl) (gm/dl)
Acetaldehyde 0.1 0.002 0.002
Acetone 0.1 0.0 0.0
Acetonitrile 0.1 0.0 0.0
Benzene 0.05 0.0 0.0
2-Butanol 0.1 0.001 0.002
Carbon Monoxide 0.05 0.0 0.0
Contact Cement 0.06 0.0 0.0
Cyclohexane 0.1 0.0 0.0
Diethylether 0.1 0.0 0.0
Ethylacetate 0.06 0.0 0.0
Gasoline 0.1 0.0 0.002
Isoprene 0.1 0.002 0.002
Isopropanol 0.06 0.006 0.005
Lacquer Thinner* 0.1 0.002 0.002
Methane 0.1 0.0 0.0
Methanol 0.04 0.009 0.008
MEK 0.06 0.0 0.0
n-Pentane 0.1 0.0 0.0
n-Hexane 0.1 0.0 0.0
n-Heptane 0.1 0.0 0.0
n-Octane 0.1 0.0 0.0
Mineral Spirits 0.1 0.0 0.0
Tetrachloroethylene 0.05 0.0 0.0
Toluene 0.05 0.0 0.0
111-Trichlorethane 0.1 0.0 0.0
Trichlorethylene 0.1 0.0 0.0
Xylene 0.1 0.0 0.0
*contained alcohol Phase II / Test Results Substance Equivalent BAC

AlcoSensor III Response AlcoSensor IV Response
Ethanol 0.1 0.100 0.100
Methanol 0.1 0.043 0.047
Isopropanol 0.1 0.042 0.042

 

[Scooterdog]

The NHTSA is not a fan of utilizing "Preliminary Breath Testing" (PBT) as the sole basis for arrest an prosecution. Within the training manual for officer certification it writes, "The suspect's impairment is established through sensory evidence: what the officer sees, hears and smells.

The PBT provides the evidence that alcohol is the chemical basis of that impairment by yielding an on-the-spot indication of the suspect's BAC." The PBT provides direct indication of the BAC. It does not indicate the level of the suspect's impairment. Impairment varies widely among individuals with the same BAC level."

There are two primary reasons for false positive tests, although a third category does also exist to a lesser extent. By and far the most inaccurate test results are obtained when the subject has residual mouth alcohol. In addition to ingesting an alcoholic beverage within 15 minutes, mouth alcohol can become an issue whenever the motorists uses breath sprays or cough syrups. Belching and vomiting can also cause the residual mouth alcohol level to rise.

Unlike the IR technology utilized with the Intoxilyzer 5000, there is no reading process whereby a deep lung sample is assured. The Achilles Heel of the Alco-Sensor is its inability to moderate a fluctuating level of ethanol that is screened. Because it uses a peak testing method, one cannot be assured the fuel cell is testing an air sample that was expelled through the alveoli of the lungs or is unabsorbed beverage from the stomach.

In this area of law, North Carolina is somewhat an oddity. The only area the Legislature did not leave to the Department of Health & Human Services is the waiting period before conducting tests. It specifically sets forth a 15 minute waiting period if the driver "volunteers" he or she has recently consumed alcohol.

In every other instance, the North Carolina Administrative Code directs officers to follow the operating instructions as provided by the manufacturer.

For some unknown reason, there is an abridgement to that policy whereby the Legislature sets its own rule regarding the waiting period. Intoximeters, Inc., recommends a 15 to 20 minute waiting period. "In administering any screening test, the officer shall use an alcohol screening test device approved under 15A NCAC 19B .0503 of this Section in accordance with the operational instructions supplied with or listed on the device, except that the waiting periods set out in this Rule supersede any period specified by the manufacturer of the device." (See infra NCAC §.0502 (4)).

The second area of false positives comes from Breath Contaminants. The NHTSA concedes "substances such as ether, chloroform, acetone, acetaldehyde and cigarette smoke conceivably could produce a positive reaction on certain devices." So much for alcohol specific testing and fuel cells.

Intoximeters, Inc., states without equivocation cigarette smoke ruins the AlcoSensor II and III, although they do not provide the scientific reasoning for the same. Within the operating instructions, videotapes and publications, it cautions officers against ruining the fuel cell with cigarette smoke. That cautionary instruction likely applies to cigars and pipes as well.

The third potential for false positives comes from certain medical conditions such as diabetes, where the subject's body produces excess amounts of alcohol-related substances due to improper metabolic functions. Certain types of diets, although not formally tested by the NHTSA, are suspected to create false positives when the kidneys and liver are in a state of "false keto-acidosis."

There are two common factors that tend to produce low breath results:
1) Cooling of the breath sample. Because of this problem area, Intoximeters placed a temperature strip on the back of the Alco-Sensor device. Although it is not formally published, this writer personally spoke with Mr. John Evans, the Chief Engineer for Intoximeters.

He disclosed the fact that for every 1 Degree Centigrade the air sample is cooled, the test results are decreased by 6%. Hyperventilating has always been thought to reduce the g/dl concentration of the deep lung sample by infusing fresh air into the sample.

That is true, but hyperventilating also cools the upper respiratory tract. Contrary to popular opinion, it can effectively circumvent the test. Subjects who are on the 0.07 / 0.08 can affect the reported BAC. If performed while standing outside during very cold temperatures, hyperventilating could logically be even more effectual.

2) The second factor that tends to produce low BAC readings is related to logic of hyperventilation. The "composition of the breath sample" refers to the mixture of the tidal breath and alveolar breath. The Alco-Sensor II and Alco-Sensor III are required to rely on certain artificial constants or assumptions in extrapolating data.

The singularly most powerful assumption is that the non-existent typical adult (male or female) possesses an 1.5 liter tidal volume in their lungs. One would be remiss in failing to recognize that tidal volume is actually less than 40% of the total lung capacity. The tidal volume is the amount of air that can be voluntarily expelled by exhaling deeply. No amount of voluntary breathing can cause the discharge of the remaining 60%.

The disparity among individuals merits discussion. For example, it is improbable an 70 year old woman who has smoked her entire life would have a 1.5 liter lung tidal volume. Comparatively, a 6'6" male who weighs 290 pounds likely possesses a tidal volume of between 4.5 and 5.0 liters. Therefore, the person who possesses the 5.0 liter tidal volume can easily avoid providing a deep lung or alveolar sample.

The sample tested is likely to be from the upper 1/3 of the lung capacity. That difference greatly reduces the amount of ethanol infused in the breath. The benefit is rather substantial to larger, in-shape subjects.

TWO DISCONCERTING FACTS

As technology has advanced, some areas of the law have reflected the acknowledgment of certain problem areas. Disconcerting Fact #1 is that North Carolina, regardless of a tenuous approval history, authorizes a device the federal government and the NHTSA believe to be inaccurate or subject to manipulation. As published within the Federal Register, the following note is found in the very small print:

On September 17, 1993, NHTSA published a notice (58 FR 48705) to amend the Model Specifications. The notice changed the alcohol concentration levels at which instruments are evaluated, from 0.000, 0.050, 0.101, and 0.151 BAC, to 0.000, 0.020, 0.040, 0.080, and 0.160 BAC; added a test for the presence of acetone; and expanded the definition of alcohol to include other low molecular weight alcohols including methyl or isopropyl.

On June 4, 1999, the most recent amendment to the Conforming Products List (CPL) was published (64 FR 30097), identifying those instruments found to conform to the Model Specifications.

Since the last publication of the CPL, two (2) instruments have been evaluated and found to the meet the model specifications, as amended on September 17, 1993, for mobile and non-mobile use.

They are: (1) Intoxilyzer 400PA manufactured by CMI, Inc., of Owensboro, KY. This device is a hand-held breath tester with a fuel cell alcohol sensor. (2) Alco Sensor IV-XL manufactured by Intoximeters, Inc. of St. Loius, MO. This device is a hand-held breath tester with a fuel cell alcohol sensor that is microprocessor controlled. IT IS DESIGNED TO MINIMIZE OPERATOR INVOLVEMENT IN PERFORMING THE TEST AND PROCESSING THE TEST DATA. (Emphasis Added)

In the field, the vast majority of handheld testing devices actually used in Mecklenburg County are Alco-Sensor II devices. Charlotte HITS Team and standard patrol officers are issued Alco-Sensor II's through a grant by Mothers Against Drunk Driving (MADD). Some neighboring communities that fall under the jurisdiction of the 26th Judicial District, such as the Matthews Police Department, carry Alco-Sensenor III's. NCAC authorizes the Alco-Sensor IV, but does not clarify whether that was the "XL" or some other model. This writer has yet to hear of any agency across the Pine State that uses the Alco-Sensor IV.

Disturbing Fact #2 is that the NHTSA is concerned about officer discretion in performing tests and the incumbent results. Logic dictates the Alco-Sensor II and Alco-Sensor III are negatively affected at best by human incompetence or at worse by a desire to manipulate the operation of the machine. Given the source, the NHTSA, those are indeed disconcerting facts!"

 

[CdwJava]

Wouldn't it have been a little less space consuming to just post the link to all this?

- Carl