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.
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.