San Diego DUI defense attorneys at http://www.sandiegoduilawyer.com/preliminary-alcohol-screening.html are often asked what that hand-held breath test gadget is.
If police ask you to blow into a small hand-held gadget, say no (unless you are on San Diego DUI probation or under 21). If you do, what is this? What does it mean?
How can a San Diego DUI Attorney help?
San Diego County DUI police enforcement agencies regularly use a roadside preliminary alcohol screening test (PAS) - the Intoximeters Inc. Alco-Sensor IV. http://www.intox.com/products/handheld.asp
San Diego California drunk driving attorneys quickly point to the lack of any mouth-alcohol detector or slope detector in this arguably inaccurate hand-held gadget.
San Diego DUI lawyers are aware of many positive false positives which register upon using this unreliable gadget. For example, a person with no alcohol in the body can eat white bread (e.g. Wonder bread) and usually get a false positive "breath level" reading.
According to the manufacturer, the Alco-Sensor IV /w Memory is an automated handheld breath alcohol gadget. It claims to offer a simple, accurate and economical method of determining a subject’s preliminary breath level and electronically stores the test data. (size : 5 1/2" x 3 1/2" & weight : 2.2lbs / 11oz). However, the gadget makes numerous assumptions and incorrectly states it can determine one's breath/blood level. The gadget attempts to measure breath but does not determine one's "blood" level.
San Diego DUI police often represent or imply a San Diego DUI suspect must blow into the machine but California law clearly states this hand-held gadget is merely a voluntary "field sobriety test and may be used by an officer as a further investigative tool." (California Vehicle Code Section 23612(h), http://www.sandiegodrunkdrivingattorney.net/consciousness-of-guilt.html )
A San Diego DUI officer is required to advise a San Diego DUI suspect as required by California Vehicle Code section 23612(i):
(i) If the officer decides to use a preliminary alcohol screening
test, the officer shall advise the person that he or she is
requesting that person to take a preliminary alcohol screening test
to assist the officer in determining if that person is under the
influence of alcohol or drugs, or a combination of alcohol and drugs.
The person's obligation to submit to a blood, breath, or urine
test, as required by this section, for the purpose of determining the
alcohol or drug content of that person's blood, is not satisfied by
the person submitting to a preliminary alcohol screening test. The
officer shall advise the person of that fact and of the person's
right to refuse to take the preliminary alcohol screening test.
[California Government Code section 1222: Every wilful omission to perform any duty enjoined by law upon any public officer, or person holding any public trust or employment, where no special provision is made for the punishment of such delinquency, is punishable as a misdemeanor.]
While this roadside hand-held gadget is not the (over 21) required breath or blood test under California's implied consent law (California Vehicle Code section 23612), if you are under 21, you must blow into this gadget. (California Vehicle Code sections 13388 and 23136). Other rules apply for under 21. San Diego DUI criminal defense lawyer defenses are still available.
This manufacturer requires before this PAS test can be used as evidence, there must first be a 15 to 20 minute continuous observation period by the officer before having a San Diego DUI suspect blow in the hand-held gadget: "...the subject must be kept under observation for 15 to 20 minutes prior to testing to ensure complete dissipation of any residual alcohol that may have been in the subject's oral or nasal cavity. [PAS Manual, p.5]
A deep lung breath must be submitted and analyzed to get a reading that accurately reflects the subject's breath measurement.
The manufacturer goes on: "Recent consumption of an alcoholic beverage, a dose of medication containing alcohol or regurgitation could introduce 'mouth alcohol' to a breath sample and cause an exaggerated reading. A 15-20 minute deprivation period prior to testing will ensure 'mouth alcohol' has not influenced the breath alcohol reading because mouth alcohol dissipates quickly. (Refer to your rules and regulations governing a required deprivation period prior testing.)" [PAS Manual, p. 4]
The California Department of Health Services have breath testing regulations.
Here is a governing California Code of Regulations, Title 17, section 1219.3 [Breath Collection]:
"A breath sample shall be expired breath which is essentially alveolar in composition. The quantity of the breath sample shall be established by direct volumetric measurement. The breath sample shall be collected only after the subject has been under continuous observation for at least fifteen minutes prior to collection of the breath sample, during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked."
The onus is on the officer to ensure the minimum 15 minute continuous observation of the subject prior to blowing. The subject need not show these things did in fact happen; it is the mere possibility of such a contaminating act.
There is no mouth alcohol detector on this gadget - that is why the manufacturer requires a 15 to 20 minute observation period before attempting to use the gadget. If one of the above proscribed things happen, the machine will not be able to differentiate between one of these false positives and the deep lung air which was supposed to be measured.
What is "mouth alcohol"?
"Mouth alcohol" refers to the existence of any alcohol in the mouth or esophagus area. If mouth alcohol is present during a California DUI breath test, then the California DUI results will be falsely high.
Mouth alcohol can be created or caused in many ways: Regurgitation of Gas, belching, burping, hiccuping, re-ingestion of alcohol, or vomiting within 15 minutes before taking the California DUI test could bring contaminated vapor from alcoholic beverages still in the stomach up into the mouth and/or throat area. Dental bridges and dental caps may trap alcohol. Chewing tobacco or gum may trap tiny or micro particles of alcohol. http://www.sandiegodrunkdrivingattorney.net/Things-other-than-alcohol.html A chronic "reflux" condition from gastric disorder or a hiatal hernia may cause elevated California DUI BAC readings.
In evaluating any California test results, one must consider whether or not the person administering the test or agency maintaining the testing device followed the regulations of the California Department of Health Services.
The foundational prerequisites for a breath test are: (1) the particular apparatus utilized was in proper working order, (2) the test used was properly administered, and (3) the operator was competent and qualified. [People v. Adams (1976) 59 Cal. App.3d 559, Coniglio v. DMV (1995) 39 Cal.App.4th 666]
Obviously, in order to properly administer the test, San Diego County DUI police have to follow the manufacturer's/regulatory guidelines and instructions, including the 15-20 minute continuous observation period requirement.
California Department of Health Services' Standards of Procedure, California Code of Regulations, Title 17, section 1221.4(a)(2)(B) and law enforcement require proper periodic determination of accuracy - every 10 days or 150 subjects, whichever comes sooner. These PAS devices must be so checked for accuracy and proper working order.
Among the many other possible problems with this gadget is the test's margin of error.
In conclusion, for a number of reasons, some of which are discussed above, it is often not difficult for a San Diego DUI attorney to show some lack of reliability or inaccuracy of the PAS test results.
For related information on the lack of reliability/accuracy of this gadget & breath testing visit the above website:
Blood Alcohol Content
Retrograde Extrapolation
Assumptions of BAC
Breath Temperature
Reliabilility of Breath Tests
Breath Test Inquiries
Breath Testing Technologies
The officer is required to advise you under Veh. C. 23612(i):
(i) If the officer decides to use a preliminary alcohol screening
test, the officer shall advise the person that he or she is
requesting that person to take a preliminary alcohol screening test
to assist the officer in determining if that person is under the
influence of alcohol or drugs, or a combination of alcohol and drugs.
The person's obligation to submit to a blood, breath, or urine
test, as required by this section, for the purpose of determining the
alcohol or drug content of that person's blood, is not satisfied by
the person submitting to a preliminary alcohol screening test. The
officer shall advise the person of that fact and of the person's
right to refuse to take the preliminary alcohol screening test.
Govt. C. 1222:
Every wilful omission to perform any duty enjoined by law
upon any public officer, or person holding any public trust or
employment, where no special provision is made for the punishment of
such delinquency, is punishable as a misdemeanor.
