Challenging BAC Breath Testing in Kansas DUI Cases [Part III]: Other Breathalyzer Defenses

This is the final installment in our multi-part blog indicating the reasons that breath test results may be unreliable.  If you have not reviewed the first two installments of this blog, we urge you to do so because it should be clear that this form of screening for blood alcohol concentration (BAC) may be effectively attacked on a variety of grounds.  In this installment, we have listed some of the additional problems with the maintenance of the breathalyzer device and manner of conducting the breath test that may compromise its validity below.  After reviewing the first two parts of this blog post and the potential issues included in this installment, it should be obvious that breath tests hardly reflect mechanical precision or scientific certainty.

Partition Ratio: The premise upon which the concentration of alcohol in one’s breath is converted into a comparable amount of alcohol in one’s blood is 2100:1.  The actual conversion ratio between people and within the same person at different times may vary based on a variety of factors including gender, body temperature, diabetes and other factors.

Device Maintenance: There are strict requirements for calibration and maintenance of the Intoxilyzer 8000.  When the police fail to perform this maintenance or cannot produce records substantiating that the calibration and other maintenance was performed, this may provide a basis for excluding the test results.

Diabetes/Low Carb Diets: If you are on a low carb diet or suffer from diabetes, your body produces ketones, which cause the body to manufacture isopropyl alcohol.  The breath testing device (depending on the type) may not be able to distinguish this substance from ethyl alcohol, which is present in beer, wine and liquor.

Improper Operation of the Device: The test administrator must follow specific procedures that include letting the machine warm up to the proper temperature and ensuring that the breath sample was from the deep lungs.  The person who conducts the breath test must also be qualified and trained to conduct breath testing.

Radio Frequency Interference (RFI): The radio in squad cars utilizes electromagnetic waves that can interfere with the operation of the breathalyzer device.

Occupational or Environmental Exposure to Contaminants: If you work in the construction trades as a painter where you are frequently exposed to acetone, you may generate a false result because the breath test device may not differentiate acetone from ethyl alcohol reliably.  There are other substances that you may be exposed to in your work environment or outdoors where the test is conducted that also may compromise the breath test results.

While this hardly constitutes an exhaustive list of the DUI defense strategies that Ms. Schlimmer employs when challenging BAC breath test results, it should dispel the notion that a breath test over .08 percent means that you inevitably will be convicted for DUI.  Kansas City criminal defense attorney Stacey Schlimmer provides aggressive defense to protect her clients who face DUI charges in Johnson County or the surrounding areas of Kansas.  Our Kansas criminal defense law firm offers a confidential free consultation so call Stacey Schlimmer, Kansas DUI Lawyer, today at 913.341.0484 or contact us online.

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