The Koger Building
Corner of 9th Street North & Gandy Blvd.
9721 Executive Center Drive North, Suite 120
St. Petersburg, FL 33702
|The INTOXILYZER® line of breath alcohol testing instruments utilizes infrared alcohol detection and is used by 42 states.|
The Intoxilyzer 8000 is the sobriety test of choice with most police agencies throughout the United States. But that doesn’t mean you have to agree with law enforcement’s enthusiasm. If you make the difficult decision to submit to a breath test and then find yourself unhappy with the results, all may not be lost. Did you know that Florida Statute 316.1932 gives you the right to an independentblood test, just for the asking?
If you failed the breath test, it is still possible you were not above the legal breath alcohol limit. Rather, the problem may be with the breath testing machine itself. The Intoxilyzer 8000 is worthy of your respect, but only when properly calibrated and used. However, the Florida breath-testing program is in serious need of revamping. It is time that law enforcement reevaluate their operating procedures with respect to the frequency and timing of calibration checks. Because citizens are essentially “tried” by this machine, it is critical that its accuracy be scrutinized and maintained to the highest possible standards.
The limitations of breath testing and the inferior calibration procedures utilized in Florida should be cause for concern. Therefore, if you have made the difficult decision to submit to the intoxilyzer and are then unhappy with the results, you should always thereafter ask for an independent blood test. The Florida legislature recently modified the statute giving you this right. This statute codifies much of the appellate case law swelling around some of the former ambiguous points. You should know that police officers and breath test operators are under no legal obligation to remind you that you have the right to an independent blood test. However, the new statute does specifically state:
“The law enforcement officer shall not interfere with the person’s opportunity to obtain the independent test and shall provide the person with timely telephone access to secure the test, but the burden is on the person to arrange and secure the test at the person’s own expense.”
It is important to note that the failure of the law enforcement officer to meet this obligation may result in the exclusion of your Intoxilyzer test results from being considered in any court proceeding. If the police officer fails to record your request for an independent blood test, write it down on anything they ask you to sign. For example, “I have requested a blood test!” This could be very important in having your lawyer later prove that you timely made the request at the police station.
There is little question that a blood test is far superior to a breath test. But most people don’t understand why. Once you learn the scientific basis and methodology of Intoxilyzer testing, there is a good chance your views on the accuracy and reliability of the machine may never again be the same. After all, the Florida legislature couldn’t have been all that enamored with the machine if they felt the need to provide you with the opportunity to have the results independently checked by a superior method of testing.
The first thing that most people are shocked to learn is that the Intoxilyzer 8000 has nothing to do with blood alcohol levels. It only measures breath alcohol levels. In fact, contrary to popular opinion, the Intoxilyzer doesn’t even use its findings to make a calculation or conversion from blood alcohol to breath alcohol figures. Therefore, to embrace the validity of breath testing you must first accept the notion that there is a direct relationship between the amount of alcohol in a person’s breath and the amount of alcohol in their blood. The Intoxilyzer 8000 assumes this ratio to be 2100 to 1. To put it simply, the manufacturer of the machine has made the assumption that:
The problem with calibrating the machines in this manner is that experts all agree that the 2100 to 1 breath to blood ratio is only an average. They will further warn you that not everyone has this magical 2100 to 1 ratio. In fact, what you will learn, is that if a person has a ratio lower than 2100 to 1, they will produce an Intoxilyzer result that will be artificially high. Just as true, if a person has a breath to blood ratio higher than 2100 to 1, they will produce an Intoxilyzer result that will be artificially lower. To date, the company that manufactures the Intoxilyzer, (CMI Corp.,) has yet to invent a method that would calculate the driver’s true ratio and then make the appropriate correction for a more accurate breath test result.
Next, consider the Florida State Statutes that define “presumptive” or “per se” levels of impairment. There is a very different standard of alcohol concentration in the measurement of breath versus blood. Florida Statute section 316.193 provides that a violation of the law has occurred if:
Now consider what 210 liters of your favorite soft drink would look like…you get the picture! Does that mean the Intoxilyzer machine requires you to produce a breath sample sufficient to fill 210 liters? No, to the contrary you only have to fill a sample chamber big enough to hold 80 milliliters of air. But what it does mean, is that because of your inability to produce a sample 210 liters in size, the machine has a huge task to perform. For instance, in order to produce a .08 reading on the Intoxilyzer, the machine is forced to detect less than one millionth of one fluid ounce of alcohol in your breath sample! That amount is smaller than what would fit on the head of a pin.
Perhaps the greatest shortcoming in Florida’s breath testing program is the failure to capture and preserve breath test samples. This is something the Intoxilyzer 8000 is already outfitted to accomplish. The practice is known as “trapping,” and permits an extra sample of the driver’s breath to be stored in an inexpensive ampoule for later independent testing. Such a practice is already in use in other states. Drivers in those states have the benefit of having their “trapped” breath sample independently analyzed by a laboratory implementing “gas chromatography.” This technology is far superior to the “infrared absorption spectroscopy” used by the Intoxilyzer and considered the most accurate and reliable method of determining ethyl alcohol in body fluids and gases. If you guessed that gas chromatography was the process used in analyzing blood, you were correct!
the gas chromatograph
Gas chromatography results are widely respected by the courts. A chemist in a hygienic clinical or forensic laboratory environment performs the analysis. Intoxilyzer testing on the other hand is typically done in the middle of the night by a law enforcement officer in the back room of the police station. Would you feel more comfortable with a brand new sterile glass collection tube for your blood, or the sample chamber of the Intoxilyzer machine into which literally thousands of people have previously blown?
Gas chromatography reports only the ethyl alcohol present in the sample. Whereas, the infrared spectroscopy method used by the Intoxilyzer is non-specific for ethyl alcohol and has to be careful with improperly detecting other irrelevant methyl alcohol-like substances. For instance, volatile hydrocarbons, (i.e. paints, paint thinners, and varnishes), that a person may have been exposed to, and “interferents” that may be present in the air of the testing room, (i.e. cleaning fluids). Over the years, the manufacturer of the Intoxilyzer has implemented more and more “filters” in its effort to overcome these deficiencies in the machine. Florida could avoid much of the controversy surrounding these issues if it upgraded its equipment to a second generation of breath testing instruments recently created by the National Draeger Corp. The “Alcotest 7110″ measures ethyl alcohol at a different wavelength that results in the instrument being far less likely to misread interfering substances.
Consider some other factors that could contribute to an inaccurate Intoxilyzer reading and note that they are all irrelevant to blood alcohol analysis:
If you have been arrested for a DUI that involves a breath, blood, or urine test, call our office for a free consultation at (727) 578-0303.