Breath Test
Most often the officer will request a breath
test of the driver. Blood tests are usually reserved for
instances where the officer believes the driver is under
the influence of drugs other than alcohol which would not
be detected by the breath testing machine, or when there
has been serious injury or death. In Missouri, the officer
may give you up to two (2) tests of your breath, blood or
urine. Failed attempts at testing do not count toward the
two tests. The legal limit is .08 grams of alcohol per 210
liters of breath.
In Missouri, most
police departments use a machine called the Intoxilyzer
5000 to test drivers' breath. The Intoxilyzer
5000 is manufactured by a corporation named CMI, Inc.,
based in Owensboro, Kentucky. It is supposed to be technologically
better than previous models, but this debatable. The
manufacturer
claims that the machine can filter out various compounds
that often get mistaken for alcohol. They also claim
that
the machine can detect "mouth alcohol", that is,
alcohol that is trapped in the mouth but is not in the blood
stream. These claims can and should be challenged judicially.
People who paint houses or work around solvents may produce
a positive reading over the legal limit without ever having
had a drink. Mouth alcohol is a big problem for the machine
and, thus, a 15 minute waiting period is required before
a breath test is administered to attempt to insure that
there is no alcohol in the mouth. Missouri courts have recentlycalled
this often overlooked observation period "critical" to
a valid breath test. The Intoxilyzer 5000 is also subject
to radio and electrical interference. Variations in the
voltage in the electrical lines or the use of mobile phones,
radios and police scanners around the machine may produce
a false positive reading.
Each machine is inspected only once per year for accuracy
by the Missouri Department of Health. The individual police
agencies are supposed to do routine calibration checks and
keep records of them. These are often important documents
to obtain in every DUI case. Police officers are required
to be certified operators of the machine.
Before a breath
test can be admitted into evidence at a trial, the prosecutor
must show that the breath
test operator (police officer) operated the machine according
regulations established by the Department of Health.
First,
and most important, is the 15 minute "observation period".
During this time the officer must not leave the subject's
presence and must insure that the subject does not put
anything
in her mouth, belch or regurgitate. The other regulations
deal with steps the officer must take to prepare and utilize
the Intoxilyzer. If the test is not administered properly,
the test may not be admissible in the criminal or administrative
cases.
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When
a testing cycle is initiated by an officer,
the machine will do internal calibrations
and checks. The subject then must blow into the
machine for an extended period of time. The
machine is designed
to test only "alveolar air" which comes
from deep in the lungs, and only after all the other
air in the lungs has been blown out. If a subject
doesn't blow hard enough, the machine will read "insufficient
sample" or "deficient sample".
Sometimes, an officer will interpret an inability
or unwillingness
to blow hard enough as a refusal. The subject
should be standing straight up to give a deep
lung sample.
Tests given while a subject is sitting down or
bending over are improper. The breath test printout
must be
studied very carefully to determine whether the
machine was functioning properly. |
Intoxilyzer 5000 |
Despite the fact that the Intoxilyzer 5000 has been the subject
of many challenges in the courtroom, judges and jurors tend
to trust the machine. Thus, it takes hard work on the part
of the attorney to expose the fallacy of the machines. As
mentioned earlier, if these machines say your breath alcohol
was .08 or higher, you may be convicted of DUI. Knocking out
the breath test is a very important element of your defense
when possible
Go to next document (Blood
Test)
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