PETER F. IOCONA, ESQ

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Orange County DUI Breath Testing

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ORANGE COUNTY BREATH TESTING
This section of the website is meant for informational purposes only. The science behind breath testing is a very complicated area of study and should be well-understood before attempting to use it in the defense of a driving under the influence (DUI) charge.

Click this link to obtain your Orange County Breath Test Results .

ORANGE COUNTY BREATH TEST DEVICE

Most States, including the State of California, have universally adopted legislation that permits reporting a DUI suspect's alcohol concentration in breath units of alcohol per 210 liters of breath. NHTSA, (or the National Highway Traffic Safety Administration), has established a conforming products list for breath testing devices or instruments that conform to the "Model Specifications for Devices to Measure Breath Alcohol".

In the County of Orange, California, the Alco-Sensor IV-XL, (a portable evidentiary breath testing device or "PEBT"), was used from 2002 to 2016 and was listed on the conforming products list for approved breath test devices. The Alco-Sensor IV-XL, produced by Intoximeters, used "fuel cell" technology to measure a person's breath alcohol level. Toward the end of 2016 and throughout 2017, the Orange County Crime Lab began implementing the Alco-Sensor V-XL, which is substantially similar to the Alcohol-Sensor IV-XL; however, the device is purportedly more accurate and comes with a few more "bells and whistles" than its predecessor. The Alco-Sensor V-XL, like the Alco-Sensor IV-XL, is produced by Intoximeters and used "fuel cell" technology. Because both devices use "fuel cell" technology, the same defenses that we used against the Alco-Sensor IV-XL are being applied to the Alco-Sensor V-XL as breath testing is still breath testing and subject to the same margins of error regardless of the advances in breath testing technology.

BREATH TESTING DEFENSES IN ORANGE COUNTY

BREATH TESTING IS AN INDIRECT MEASUREMENT OF A PERSON'S TRUE BLOOD ALCOHOL LEVEL

Breath testing is an indirect measurement of a person's true blood alcohol concentration or blood alcohol level. In order to indirectly measure a person's true blood alcohol concentration or blood alcohol level, the breath testing devices makes a set of assumptions that are not applicable except in specific circumstances. If a breath test is conducted while the breath test subject was still in the absorption phase, i.e., still absorbing alcohol, then a breath test device will typically over-report the breath test subject's true blood alcohol level. Research has shown that this over-reporting can be quite substantial, accounting for over-reporting by up to 60-to-80%.

Conversely, if a breath test is conducted while the breath test subject was in the elimination phase, i.e., no longer absorbing alcohol, then a breath test device will typically under-report a person's true blood alcohol level. Research has shown that a breath test device will typically under-report a person's true blood alcohol level by only 10-to-15% as opposed the substantially higher percentages found in those still in the absorption phase at the time of the breath testing sequence.

The over-and-under-reporting is associated with a person's blood/breath partition ratio at the time the breath test was administered. The lower the blood/breath partition ratio, the higher the over-reporting. Conversely, the higher the blood/breath partition ratio, the greater the under-reporting.

All of this is based on the fact that the device assumed that your blood-to-breath partition ratio is exactly 2100:1. This assumption is made by the device even though some peer-reviewed scientific studies have shown that a person's blood-to-breath partition ratio could be as low as six or eight hundred depending on the time of the breath test subject's last drink and the rate at which he/she metabolizes alcohol. The change in a breath test subject's blood-to-breath partition ratio could cause the device to over-report the breath test subject's true blood alcohol level by nearly sixty-to-eighty percent. That change could mean the difference between being above or below the legal limit.

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BREATH TEST DEVICES ASSUME A CONSTANT BREATH TEMPERATURE

The breath test device also assumes that the temperature of the breath flowing through the device at the time it indirectly measured the person's true blood alcohol concentration or level was 34 degrees centigrade. A breath test subject whose breath temperature was only 1 degree centigrade higher could yield an over-reporting of the person's true blood alcohol level by up to 8.6% and this is documented in scientific literature. Thus, a change of just one (1) degree can cause the device to over-report your true blood alcohol level by 6-to-8%. The change of just one (1) degree centigrade could mean the difference between guilt and innocence. This is especially significant since some studies have demonstrated that the real average breath temperature for actual breath test subjects in DUI cases is closer to 35.5 degrees centigrade with readings well over 37 in some instances. This alone would cause a false high reading of between 10-to-20%.

BREATH TEST DEVICES CANNOT DISTINGUISH BETWEEN MALE BREATH TEST SUBJECTS AND FEMALE BREATH TEST SUBJECTS

The breath test can also not discern between a male and a female breath test subject. This despite the obvious physiological differences between the two genders. The breath test device can also not tell whether the breath test subject is large or small, a thin, medium or large build; nor can it tell whether the person is suffering from a medical condition that could affect the accuracy and reliability of the breath sample.

IN ORANGE COUNTY, BECAUSE BREATH TEST DEVICES USE "FUEL CELL" TECHNOLOGY, THERE IS NO "SLOPE DETECTOR" TO ENSURE THAT THE SAMPLE WAS NOT CONTAMINATED BY "MOUTH ALCOHOL"

In Orange County, the Alco-Sensor IV-XL, discussed above, uses fuel cell technology; thus it does not contain a "Slope Detector" and is therefore unable to measure whether "mouth-alcohol" contaminated the breath sample. Instead, the Orange County Crime Laboratory relies on the minimal safety precautions set forth by Title 17 of the California Code of Regulations to opine that the reported results were accurate and reliable. Thus, so long as the readings were obtained after a continuous 15-minute observation period, the two readings were separated in time by a period of at least two minutes, and the results agreed within a .02 of each other, the forensic scientists from the Orange County Crime Laboratory will testify that the results were accurate and reliable. A skilled DUI Defense Lawyer can demonstrate to a jury why this opinion is erroneous in certain situations.

THERE IS A "MARGIN OF ERROR" ASSOCIATED WITH BREATH TESTING

As can be seen from the information set forth above, in addition to the inherent "margin of error" associated with the breath testing device itself, often referred to as "instrument error", there is also a "margin of error" that is derived from the physiological differences in each and every one of us. This type of error is often referred to as "physiological error" and it encompasses the largest amount of error associated with the device. In addition to "instrument error" and "physiological error", there is also "administration error", which is the "margin of error" derived from the improper administration of the breath testing device, such as when the operator fails to strictly adhere to the breath testing protocol.

BREATH TESTING IS DIFFERENT THAN BLOOD TESTING

The abbreviation "BAC" refers to "blood alcohol concentration", with the concentrations being expressed as percent weight to volume, % (w/v) or grams of alcohol per 100 milliliters of blood. The abbreviation "BrAC" refers to "breath alcohol concentration", with the concentrations being expressed as percent weight to volume, % (w/v) or grams of alcohol per 210 liters of deep lung or alveolar breath. The difference in the abbreviations demonstrates that there is a difference between the two measurements, blood testing obviously being subject to a lower margin of error. That being said, there are limitations to the accuracy of blood testing measurements as well and a discussion of the "margin of error" associated with blood testing can be found by clicking Orange County Blood Testing.

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