Most San Diego County police officers use the the Alco-Sensor IV, a hand-held,
portable breath device manufactured by Intoximeters Inc., St. Louis, MO.
“What was that hand-held gadget the San Diego DUI officer had me blow into?”
San Diego DUI attorneys have repeatedly shown hand-held breath testing
gadgets cannot protect against falsely elevated results also found in evidential
breath-testers. California does not have any regulations mandating that the PAS
comply with recommended manufacturers’ guidelines, e.g. frequent calibrations,
15 minute observation periods, and replicate testing. By allowing San Diego DUI
prosecuting attorneys to introduce the numerical value of the PAS test, courts
dangerously confuse jurors as use of the number exceeds the intended limit of
the gadget per the manufacturer. Instead, the use of the gadget should be as
a field test without a number or for establishing presence of alcohol and no more.
The subject still has to provide a valid blood or further breath sample. California
law requires 1 implied consent test not multiple breath test machines. So courts
should frown upon the potential misuse of these gadgets. Freedom and driving
privileges are entitled to better protection. San Diego DUI attorneys should use
every chance to show the limitations of the gadget, to avoid an unfair or unjust
result.
The Alco-Sensor IV lacks numerous fundamental protections & safeguards of the
traditional breath testing devices which are used to test persons for possible
use in San Diego DUI trials. The gadget does not have a mouth alcohol detector.
Obviously, the reliability and trustworthiness of any breath sample depends in
part on obtaining a breath sample of exclusively deep lung air. In contradistinction
to infrared spectroscopy devices, hand-held breath testing gadgets using fuel cell
technology are unable to separate breath samples contaminated with mouth
alcohol from those breath samples which contain only deep lung air.
So the portable gadget has no way of knowing whether the subject burped,
belched, regurgitated gas, or otherwise introduced alcohol into the sample
from some source other than deep lung air. The reason is the gadget does not
contain a slope detector that would separate some mouth alcohol events
from the spectrum of a true deep lung breath sample. Because of this, all
manufacturers of hand-held breath testing gadgets require a deprivation
period of at least 15 to 20 minutes prior to testing or duplicate testing, to
reduce the risk of falsely elevated results from mouth alcohol when using the
gadget for evidential purposes.
A subject who has acid reflux or gastro-esophageal reflux disorder (GERD) can
produce falsely elevated results on these gadgets, because to the lack of any
technology guaranteeing prevention of such an occurrence.
The gadget is further not protected from Radio Frequency Interference to the
same degree as evidential breath testers.
The gadget does not use infrared technology, which the manufacturer admits is
needed to ensure the highest quality breath sample and truest deep-lung
result. The device is susceptible to temperature variants, so it should not be
used until it has reached appropriate temperatures. Unlike other models, the
Alco-Sensor does not heat at the 4 critical stages for testing (e.g. unlike
Intoximeters Inc.’s EC-IR breath test estimator, which does).
The manufacturer recommends that the Alco-Sensor IV not be operated or
stored in environments with heavy alcohol vapor, cigarette smoke, high levels
of radio interference, or magnetic fields. San Diego county police stations
usually have a lot of radio interference and electromagnetic fields, especially
in their DUI breath test machine processing areas.
The manufacturer states that it “will not respond to known substances that
might be found in a living subject after a 15-minute deprivation period.”
San Diego DUI lawyers relate that most San Diego police officers do not really
continuously observe the subject for 15 minutes before testing.
Some San Diego area police do not wait 15 minutes before using it on a subject.
For “screening tests” only (for non-evidential testing which should not be used
in San Diego court or at the California DMV), the manufacturer instructs that
“observing a fifteen-minute deprivation period prior to testing, where no substance
is introduced into the mouth, will ensure the elimination of mouth alcohol.”
For evidential test procedure (to be used in San Diego court or at California DMV),
“the subject must be kept under observation for a period dictated by the agency’s
testing protocol, usually 15 to 20 minutes.”
There are admitted drawbacks to the device, according to the manufacturer.
First, the device is no better than the quality of the sample collected. “A
deep lung sample is essential to produce an accurate breath/blood sample,”
but the device does not employ a slope detector or CO2 detector or
infrared technology to ensure the highest quality sample.
The Alco-Sensor IV is subject to temperature requirements of 50 degrees
Fahrenheit to 104 degrees Fahrenheit.
The manufacturer admits that “the accuracy of a subject test result is
dependent upon a properly calibrated instrument,” but it fails to define
what the accuracy or calibration requirements should be for a properly
working device.
There are several conditions in the course of a test that can produce a
‘Void’ on an Alco-Sensor IV: radio frequency interference, sampling
mechanism not releasing properly, battery too low, set button not down at
time of sample, valve did not sample, 3rd ‘NOGO’ on test, failed ‘blank’
requirement, temp too low for test or calibration, temp too high for test or
calibration. Also, the manufacturer notes that RFI can alter the test.
The manufacturer states that most units hold their accuracy for ‘months.’
Otherwise, they need to be fixed, i.e., calibrated (a procedure similar to
having to reset your bathroom scale every month).
Finally, the Alco-Sensor IV has a possible carry over effect at low
temperatures, and the NHTSA performed a study entitled “Special Testing
for Possible Carry Over Effects Using the Intoximeters, Inc. AlcoSensor IV
at 10 Degrees Celsius” U.S. Department of Transportation (2002) DOT
HS 809 424., concluding:
“The results show that the possibility for the occurrence of carry
over in breath testing must be addressed when operating at low
ambient temperatures, particularly when using unheated breath
testers. The results show that the potential carry over can be
eliminated easily by using procedural controls, such as performing
an air blank before the test, or by testing two separate breath
samples and/or by using a warm air flushing of the breath tester
airway.”
San Diego DUI criminal defense attorneys have shown false positives can be
from items such as soy sauce, white bread and cigarette smoke. Fuel cells
have reported false positives from milk and soda pop. Trace amounts of alcohol
can be found in unopened cans of soda pop. Studies show a concentration
of alcohol in sparkling waters as high as 2.21 percent. Unsuspected Ethanol
Ingestion Through Soft Drinks and Flavored Beverages, Letter to the Editor,
Journal of Analytical Toxicology, Volume 20, Number 5, (1996) pp. 332-
333. According to Shirley Ezelle, Chairperson for the National Safety
Council’s Committee on Alcohol and Other Drugs, one glass of milk can
give a person a .02 blood alcohol concentration on a breathalyzer test.
International Association For Chemical Testing Newsletter, August 2007
Volume 18, Number 3.
Additionally, fuel cell gadgets are susceptible to inherent problems with
accuracy and reliability, due to temperature extremes. In cold weather, it has
been determined that alcohol may remain in the device and ‘carry over’ to
the next test. According to the National Highway Traffic Safety
Administration, when discussing an AlcoSensor IV without a heated cell:
“If the ambient air is cold enough, and if the hand held breath
tester is unheated, it is possible for the moisture in the breath to
condense onto the airway surface of the tester, and cause alcohol
present to condense with it. It has been pointed out to NHTSA
that if this condensation occurs, it is possible for alcohol in one test
to carry over to a second test, which would cause a false positive
result.” U.S. Dept. of Transportation NHTSA, Special Testing for Possible
Carry Over Effects Using the Intoximeters, Inc. Alco Sensor IV at 10
Degrees Centigrade, DOT HS 809 424 (March 2002)
The study concluded that:
“The results show that the possibility for the occurrence of carry
over in breath testing must be addressed when operating at low
ambient temperatures, particularly when using unheated breath
esters. The results show that the potential carry over can be
eliminated easily by using procedural controls, such as performing
an air blank before the test, or by testing two separate breath
samples and/or by using a warm air flushing of the breath tester
airway.”
Lastly, the fuel cell has a limited life span. Over time, it becomes less &
less sensitive, until such point as it is unable to hold a calibration
and must therefore be replaced. One manner in which to determine
the ‘age’ of a fuel cell is through ‘gain.’ Gain is an amplification
figure. According to Intoximeters, Inc., fuel cell gain can be determined in
the EC-IR by performing certain diagnostic activities. If a fuel cell gain
reaches 255, and the instrument consistently falls out of specification, the
fuel cell has become unreliable. PBT units do not have the same ability to
diagnose fuel cell gain as does an evidential EC-IR. Thus, a police
department could continuously use the device, and then recalibrate it,
without knowing that the fuel cell is no longer ‘acceptable.’
As stated by Intoximeters:
“The exact behavior of cells in storage is impossible to predict with
our present knowledge. Some lots of cells have been stored at
room temperature in their original sealed containers and maintain
excellent parameters for many months, and even in excess of one
year. Other lots stored side by side exhibit significant degradation
when first put into service.” Intoximeters, Inc., Intox EC-IR
Workshop Manual (January 2000 Rev. 1).
San Diego DUI lawyers and DUI prosecuting attorneys should review
all manuals and advertising materials for the gadget as its reliability
will always be open to question. A court or jury must carefully look
at the limitations of this gadget before giving any weight or assess any
degree of trustworthiness to its reported number.