A Breath Test is the most common – and incriminating – piece of evidence that is used by the Government against you in a DUI or APC case. In Oklahoma, we presently use a testing device called an “Intoxilyzer 8000“. The Government WANTS you to submit to this test on these machines. Prosecutors view the results of a breath test as IRREFUTABLE evidence of intoxication. Regrettably, most defense attorneys do not know HOW to rebut and attack a breath test on these machines. As a result, the client YOU – suffer. However, our office knows how to do this and does it in every case we represent!
So, how does breath testing work? Read on.
THE GENERAL CONCEPT OF TESTING ALCOHOL IN BREATH
It has always confused people – whether they would admit it or not – that some machine or device could take a sample of a person’s BREATH and tell us what the amount of alcohol was in the person’s BLOOD. At the same time, however, the same people have accepted this concept without much, if any question. As the defending of a person charged with DUI with a breath test, this MUST be understood and questioned by the attorney.
Certain presumptions must be made to support the concept of breath testing for alcohol. The most important of these is Henry’s Law which relates to alcohol in water (or blood) which is:
For a fixed concentration of alcohol in water at a fixed temperature, the ratio of alcohol in air ABOVE the water is also fixed. Thus there will exist at least theoretically a constant ratio between the concentration of alcohol in the alveolar air of the lungs.
This would mean that the blood in the lowest part of the lungs, where capillaries are at their greatest concentration, would be carrying the alcohol and, due to the interior or core temperature of the person, the alcohol would be “hovering” in the gases directly above these capillaries. Alveolar air, coming from the sacks or alveoli deep in the lungs, is that which is believed to come from the “bottom” of the lungs or the last or end blow from the individual.
As this part of the air from the lungs is exhaled, the presumption is that the alcohol level will RISE as the gases exhaled come from deeper in the lungs, as the gases at the “top” of the air passageway is further away from the location where the Henry’s Law/gas exchange is occurring. Once the alcohol level “plateaus”, the last breath of the lungs is presumed to have now reached the machine and the sample is complete. However, Dr. Michael Hlastala, of the University of Washington, has challenged this entire concept recently, initially presented at the Third Annual Summer Session at the National College for DUI Defense in 1997 at Harvard Law School which the senior Mr. Sifers attended.
Foundational to this presumption is that the FURTHER presumption that the constant ratio in a human being of the amount of alcohol in this gas is one (1) part for each 2100 parts of blood. This is known at the blood/breath ratio of 2100:1, which is referenced throughout this written material. In other words, if the number of molecules of alcohol in the gas of the sample of the person is multiplied by 2100, you will have the alcohol level in his blood. As also referenced in this written material, this is a problem that is ALSO foundational in defending these cases in that this ratio can ACTUALLY vary – easily – in an individual from 1500:1 to 3000:1!!
These presumptions are the basis for any and all breath testing devices used in the world. There are many different machines that are used to test alcohol in the breath that use the infrared (IR) system (considered to be the most accurate and reliable) such as the Draeger, Intoximeter, and, of course, the Intoxilyzer which we use exclusively here in Oklahoma.
A GENERAL EXPLANATION OF THE INTOXILYZER 8000
The Intoxilyzer 8000 is basically an infrared (IR) spectrometer connected to a-not-so-sophisticated computer. Infrared spectroscopy is a system which involves reading light wave lengths. It has been long understood that certain molecules absorb certain wave lengths of light. It is the system’s use of this IR absorption which results in a person’’s reading on the machine.
The sample of the breath to be tested or analyzed is introduced into the sample chamber. Light is flooded into the chamber via a Quartz, tungsten halogen lamp. The chamber lens gathers the light passing through the chamber and focuses it into the IR filter. This filter has an “eye” to detect certain IR wave lengths. The IR detected is sent to the detector which translates the wave lengths into electric energy. This energy is sent to the processor which amplifies the reading from the filter and converts this, via the computer and its software, into a “BrAC” level at grams of alcohol per 210 liters of breath. This software assumes that you are an AVERAGE person with a 1:2100 breath/blood ratio.
The IR “reading” by the filter is caused by the absorption of that particular IR wave length by a specific molecule, i.e., ethanol. The filter “sees” less of that wave length when there is absorption by any unknown in the chamber. This variance is what eventually reaches the processor and the computer software converts that variance into an estimated alcohol result.
TAKING THE TEST ON THE 8000
In Oklahoma, every breath test must be preceded by what is called an “observation” or “deprivation” period of at least fifteen (15) minutes. During this period of time, the person about to take the test on the Intoxilyzer is not to eat, drink, smoke, or vomit. He is, basically, not to have anything go into – or out of – his mouth. The purpose of this deprivation period to is assure that there is nothing in the person’s mouth which could contribute to a false reading – like mouth alcohol – on the Intoxilyzer. Importantly, at the start of this period, the Officer doing this deprivation is to check the mouth of the person to make sure there is “no foreign object”. Once this deprivation period is done, the officer can start the test of the person.
Here in Oklahoma, Rules of the Board of Tests have a permissible variance between each of the two (2) breath tests to be considered valid. The variance here in Oklahoma that is acceptable between the two (2) samples is + .03%. Some states call for a variance of + .01% or + .02%. If it is greater than the specified range of variance, most states’ rules like here in Oklahoma – require a re-test of the person.
The software will abort a test if an operator attempts to alter any part of the sequencing above. This feature is oft-times argued to be a “fail-safe” of the machine.
To start the test, the officer pushes the green button which sets the software program into operation. Using the attached keyboard, he then types into the unit certain identifying information following the prompts on digital read-out. The machine then begins it’s cycle. Most states’ software will cause at least one “air blank” to be performed (which is supposed to clean all alcohol – or other detectable substances detectable – from the sample chamber) and then a sample is collected from the person. There are many other states (including here in Oklahoma) which require two (2) samples of the person’s breath for a complete test.
Once the preliminary procedures have been accomplished, the display will then read “please blow”. The person is directed to blow into the machine. There is a constant “tone” sound from the start of his blow until he finishes. The officer will advise him to blow until the tone stops. Of course, however, it stops automatically when the person stops blowing, whether he has emptied his lungs OR not. The machine is NOT receiving air to measure for alcohol if this tome is NOT being heard.
The machine has received an adequate, measurable sample when the “0” to the left of the decimal point on the read-out appears. However, this is not what your officer is trained to have your client do. You will directed to continue to blow until you CAN NOT blow any longer. According to a Dr. Hlastala, the longer that you blow, the higher the reading that the machine will give the person! Instead, the Board of Tests has fixed the machines to not let the reading be seen on the digital read-out DURING the person’s “blow” so you can not SEE this “0” and stop if you choose. It is believed by Mr. Sifers that this change was in DIRECT response to his teaching this fact in the various seminars around the State of Oklahoma.
Once the test is complete as per the specific requirements by the state rules, the result(s) are printed out by a printer attached to the machine. This print-out is called an “Officer’s AFFIDAVIT”. If you failed or refused the test, this document is to be used by you as your driver’s license for thirty (30) after your arrest. This document, ALSO, become the “the evidence of the number” in the case.
A quick “problem” list with the 8000:
Electrical and surge problems. At base, this thing is a computer. Using a car’s generator to power it contributes to errors in processing.
Interferents. While it is designed to eliminate false positives with CERTAIN chemicals that can be found in a person, it STILL misses OTHERS which can be falsely read as alcohol in the client’s test result.
The “checking” system or verification system is different. The 8000 uses GAS with alcohol in it for calculations. This introduces the standard problems with measurements in ANY gas: pressure and flow, equilibration, etc. A NEW problem engineered into the testing system!
The gas pathways on this new machine are the same as the engineering in the manufacturer’s models from the 1960’s! As a result, we have the same problems back in THIS machine which were removed in the older machine, the Intoxilyzer 5000. This can produce contributions to a client’s test from the gas cylinder used for calculation checks!
In short, there are STILL challenges available to this NEW machine, too.
Oklahoma Field TestsStandardized Field Sobriety Tests (“SFSTs”)In their training, police officers are trained in what is, generally, a three part investigative “scheme” to look for and arrest persons for DUI. The first part is called “Vehicle in Motion” (looking for certain driving behaviors), the second part is the “Pre-exit interview” (what questions to ask & what to look for) and the last is the actual field sobriety tests. Each part is specifically trained during the SFST course. However, for most police officers, the first two parts are pretty much: saw traffic offense, smelled alcohol, went straight to field tests. So what are these tests? What are the cops looking for? And, should you ever agree to take them? On this last question, look at Jeff Sifers’ article on SFSTs listed below! We think you will agree with us that OUR suggestion is to ALWAYS refuse to do the field tests!Back to the Tests: The SFST battery consists of three tests administered and evaluated in a standardized manner by law enforcement officers at roadside to assist them in making an arrest decision. Horizontal Gaze Nystagmus (HGN) is an involuntary jerking of the eyes that occurs as the eyes move to the side. When a person has consumed alcohol, nystagmus is exaggerated and may occur at lesser angles depending on the degree of impairment. The Walk and Turn and One-Leg Stand tests require a person to listen to and follow instructions while performing simple physical movements. Since these tests are alcohol sensitive, impaired persons have difficulty with these divided attention tasks. During the tests officers observe and record clues which are alleged indicators of impairment. Observing four clues for horizontal gaze nystagmus indicated a BAC at or above 0.08 percent, and two HGN clues indicated a BAC at or above 0.04 percent. The scoring was not modified for the other two SFST tests. During routine patrols, the officers administered the SFSTs and completed a data collection form for each test they administered. The officers’ final step in each case was to administer an evidential breath test to get a BAC measurement.And that is the official explanation. But, read on.Field Sobriety Tests are subjective, designed to be failed, and – if it were not for the fact they result in arrests of people who SHOULD NOT be arrested – are a not-so-funny and cruel JOKE. But, these are NOT laughing matters.The “Field Sobriety Tests” can be expected to be requested of a person in almost EVERY DUI/APC encounter. The officer will expect you to “do as you’re told” when he asks you to get out of your car and “do a couple of tests to see if you are safe to continue to drive”. And, certainly, you MUST get out of the car, if and when he requests it of you: THAT is not discretionary! You might believe that if you pass these tests, you will be allowed to go on about your business and WON’T be arrested. Think again. If a police officer has reached the point in his investigation of you as a potential drunk driver, he has – IN ALMOST EVERY INSTANCE – already decided to arrest you. He is ONLY attempting to get you to GIVE him more evidence against you which is NOT generally protected by the Miranda warning(s).And, you are NOT going to pass those tests. As indicated, they are DESIGNED to be failed, EVEN if you are sober . . . period!SFST’’s were designed to be done in a specific manner or way. Any alleged reliability or validation that might be claimed by the government is ONLY when these are done as originally designed. However, our office has, in the thousands of cases that they have represented, seen only a VERY FEW of these tests that were administered to his clients in this PROPER and PRESCRIBED manner! The government’s own research tells them that the tests are “compromised” if they are NOT done by the procedures that are set out. However, it is the RARE cop who seems to know this proper procedure. But, they do them ANYWAY, arrest people, and claim that the SFST’s were the reason that it was decided that the person should have been arrested!!Designed to be failed? Absolutely. Consider what it takes to pass or fail one.On the “walk and turn” test (see below), a person must complete the test with a 97% level of accuracy (EVEN WHEN IT IS GIVEN IN THE ABOVE REFERENCED PROPER MANNER) to pass this test. 97%! On the one leg stand (see below), a person must complete the test with a 98% level of accuracy (EVEN WHEN IT IS GIVEN IN THE ABOVE REFERENCED PROPER MANNER) to pass this test! 98%! If ANYONE was required to pass a driving test at this level, there would only a few licensed drivers on the road in the U.S. today. Indeed, it is UNLIKELY that the officer scored that high on the required proficiency tests when he went through the training course for these field tests!REMEMBER: these tests are voluntary. There is NO requirement for you to do them. The officer will not tell you that. If you refuse to submit to them, there is NO LEGAL ramification. It will not revoke your license. What it WILL DO is avoid your voluntary giving of evidence against yourself, whether it is valid evidence or not.
SO, should you submit to these field tests, if asked by an officer?
Charles L. Sifers advise his clients to NOT TAKE field tests. Get out of the car (which you must do) and politely refuse to submit to these field tests. When the officer – which he will – tells you that he will have to arrest you if you don’t take them and that if you pass them he won’t arrest you, remember: he has already planned to arrest you. You are NOT going to pass the tests. Why give him MORE bogus evidence that you will have to defend later?
BUT, as many of the police officers who have suffered the blistering cross examination that we know how to do, Field Tests do NOT frighten OUR office.
Now, read this article:
Standardized Field Sobriety Tests: An Introduction To Tests You Will Never Pass
C. Jeffrey Sifers
presented to the Oklahoma Criminal Defense Lawyers Association,
Sobriety testing takes on many forms, chemical or non-chemical, pursuant to whichever stage that is viewed during the entire process of a Driving Under the Influence arrest. It is not uncommon during the infancy of this type of arrest situation for the arresting officer to utilize various forms of “field” sobriety tests to judge the impairment level of the contacted suspect. This written material will examine the “Standardized” field sobriety tests that are the accepted as valid and reliable by the National Highway Traffic Safety Administration (NHTSA.) These Standardized Field Tests are the only recommended and accepted testing battery by the International Association Chiefs of Police for use in the field by Law Enforcement individuals.
HISTORY OF THE SFSTs
The effect of alcohol on human behavior, specifically during the task of driving a motor vehicle, was studied in the early ‘70’s by NHTSA in an effort to curtail the trend of drinking/intoxicated drivers on the roadways. The NHTSA Standardized Field Sobriety Test battery is the culmination of this behavioral research performed by the Southern California Research Institute. In late 1975 SCRI began their initial research using 19 participants in the first pilot studies designed to create maneuvers that could assist police officers in making DUI arrest decisions. These pilot studies were headed by Marcelline Burns & Herbert Moskowitz. The focus was to create a testing battery that was “essential …to represent a variety of skills.1“
The researchers further went on to note that “…some persons are unduly handicapped on certain kinds of tests due to age, physical impairment, or language or cultural barriers.2” The result was a focus on tests which included large muscle coordination, balance, and “cognitive skills3.” These two researchers then administered a battery of six tests which represented the above criteria to 238 participants in an effort to assess the potential for these tests to detect persons possibly impaired by alcohol.
The final recommendation for further study of the most accurate of these tests was released in 1977. These recommended tests are comprised of the current test battery still currently in use today; the One-Leg-Stand, Walk-And-Turn, & Horizontal Gaze Nystagmus tests4.
NHTSA commissioned SCRI again in 1981 in an effort to create “standardized” elements for these recommended tests to assess the possible increase of sensitivity to alcohol, as well as, to ensure the maintenance of their accuracy and reliability.5. This study took the recommended three test battery and created the basic set of standardized instructions and grading scales that accompany the SFSTs today. These “new and improved” tests were administered to 296 and then 145 participants in a two-part laboratory setting to ensure test-re-test reliability. The tests were then field tested in a field environment by local law enforcement officers to assess if they improved their correct arrest/release decisions . The test battery showed an 81% accuracy by the officers in the laboratory setting. The field study showed an increase of 8% of correct arrest decisions by the participating officers6. It was this study that served as the basis for a final evaluation that would provide the springboard for NHTSA’s recommendation for nationwide use of these sobriety tests7.
This final evaluation came in 1983 as a NHTSA sponsored study from SCRI. This study was performed solely in the field by researcher trained officers in Maryland, Washington D.C., Virginia, and North Carolina. It was following this study that NHTSA made it’s recommendation to the International Association of Chiefs of Police that there existed a new tool for the detection and deterrence of drivers who were suspected of DUI.
The IACP accepted and implemented the SFST battery into its recommended training for officers in 19868. There have been revisions to this recommended training by NHTSA in 1992, 1995, and 20009.
There have been separate studies completed in the last few years by agencies other than SCRI. Colorado DOT sponsored a validation study in 1995 which claims to have produced an accuracy rate of 93% for correct arrests.10 Florida in 1997 validated the tests at an accuracy rate of 95% for BAC’s of 0.08 or higher.11 And, in 1998, the San Diego validation study performed by ANACAPA Sciences, Inc. produced an accuracy rate of 91% for BAC’s of 0.08 or higher as well.12,13
THE SFST BATTERY
The STANDARDIZED field sobriety test battery is comprised of three tests. The One-Leg-Stand, Walk-And Turn, & Horizontal Gaze Nystagmus. An important facet of the SFST training14 is the stressing of this standardization during the administration and scoring of these tests. Indeed, NHTSA’s training manual highlights the fact that the SFST battery validation only applies when the tests that are performed when following the “prescribed, standardized manner15.” The Ohio State Supreme Court is the first to acknowledge that strict compliance to standardized procedures could not serve as evidence of probable cause to arrest for DUI.16 This strict compliance is this first line of defense concerning the SFSTs.
The test that causes the most discussion about its acceptance is the Horizontal Gaze Nystagmus test, or HGN. The HGN is a physical test that is caused by disturbances in the vestibular system located in the inner ear, and by the sedative effects of alcohol or other drugs. Of course, these are not the only means from which an officer might see nystagmus.17 This is considered to be the most accurate test in determining impairment within the SFST battery claiming a 77% accuracy rate.
The HGN is a test that will many times produce opportunities for the strict compliance attack during its administration, and the subsequent testimony of the arresting officer. The standardized elements of the HGN include verbal instructions to stand with the arms to the subject’s side18, and the removal of eyeglasses. The testing stimulus must then be situated approximately 12 to 15 inches from the subject’s eyes19. The officer MUST then check for equal tracking of the stimulus by the eyes20, and for the pupil size of both eyes. It is only after the above elements that the passes for Lack of Smooth Pursuit, DISTINCT Nystagmus At Maximum Deviation, and Nystagmus Prior to 45 Degrees are to be performed. Each of these passes require a minimum of two COMPLETE passes across the plane of the eyes, and have 1 clue that may be assessed per eye per test21. The next standardized step is to total the clues seen, and then check for vertical nystagmus22. There is a possibility for 6 clues during this test.
The Walk-And Turn test is a psycho-physical, divided attention test that was originally designed to reflect the constant decisions required during the task of driving. Although NHTSA has abandoned their initial defense that the SFST battery was applicable to (representative of) impaired driving, the WAT survives as an alcohol sensitive counting and balancing test. This test claims to have an accuracy rate of 68% per the NHTSA laboratory studies.
The possibility of attack during this test is very high due to the increased amount of required instructions necessary prior to administration, and the 8 possible clues23. Questions that defense counsel may consider asking of the officer should include:
Questions regarding the instructions given to the defendant on the night of the arrest24.
Questions about required demonstration of the tests to the subject prior to beginning.
Questions concerning the manner in which the subject performed the test in order to receive whatever clue assessed.
Questions concerning the step where that clue originated.
Questions about the amount of times a certain clue was assessed.25
Questions regarding the officer’s inquiry as to any physical problems with the subject (feet, legs, knees, etc.)
The WAT was originally limited in administration by a subject’s age and weight. The provisions that persons who were 50 pounds overweight or 65 years of age of older was changed in 1995 to allow only the age requirement. Persons of all weights are acceptable under the newest guidelines as well (2000 Revision.) Also, NHTSA indicates that persons who are wearing heels of 2″ in height or greater should be given the opportunity to remove their shoes.
The entire set of instructions, limitations, and scoring parameters are included in these written materials in Section VIII, Concepts and Principles of the Standardized Field Sobriety Tests, in the NHTSA Student Manual pages 10-12.
The OLS is the second psycho-physical, divided attention, counting and balancing test in the NHTSA SFST battery. It is also sensitive to alcohol impairment, and has been assigned a accuracy rate of 65%. This test is much like the WAT is the attacks that defense may have during it’s administration26. There are 4 total clues possible for this test. Points of interest for questions should include:
Proper set of instructions
Demonstration of test to subject
Definition of swaying
How many times did subject put foot down27
Which foot did subject raise28
Questions regarding the officer’s inquiry as to any physical problems with the subject (feet, legs, knees, etc.)
Persons who are over 50 pounds of weight or are 65 years of age or older will be limited in their performance of the OLS. Also, NHTSA indicates that persons who are wearing heels of 2″ in height or greater should be given the opportunity to remove their shoes.
The entire set of instructions, limitations, and scoring parameters are included in these written materials in Section VIII, Concepts and Principles of the Standardized Field Sobriety Tests, in the NHTSA Student Manual pages 13-14.
Alphabet & Counting Tests
The alphabet and counting tests were studied during the initial phases of the NHTSA sponsored research for accurate and reliable field tests. They were eliminated from the field test battery for reasons, but are still included in the NHTSA training as “pre-exit interview techniques.” They are NOT considered as part of the NHTSA SFST battery, and are considered unreliable. Below is an excerpt from the NHTSA Student Manual, Section VI, Personal Contact, Page 4-6:
PRE-EXIT INTERVIEW TECHNIQUES
A basic purpose of the face-to-face observation and interview of the driver is to identify and gather evidence of alcohol and/or other drug influence. This is the purpose of each task in each phase of DWI detection.
During the face-to-face observation and interview stage, it is not necessary to gather sufficient evidence to arrest the driver immediately for DWI.
There are a number of techniques you can use while the driver is still behind the wheel. Most of these techniques apply the concept of divided attention. They require the driver to concentrate on two or more things at the same time. They include both questioning techniques and psychophysical (mind/body) tasks.
These techniques are not as reliable as the standardized field sobriety tests but they can still be useful for obtaining evidence of impairment.THESE TECHNIQUES DO NOT REPLACE THE SFST.
This technique requires the subject to recite a part of the alphabet. You instruct the subject to recite the alphabet beginning with a letter other than A and stopping at a letter other than Z. For example, you might say to a driver, “Recite the alphabet, beginning with the letter E as in Edward and stopping with the letter P as in Paul.” This divides the driver’s attention because the driver must concentrate to begin at an unusual starting point and recall where to stop.
This technique requires the subject to count out loud 15 or more numbers in reverse sequence. For example, you might request a driver to, “Count out loud backwards, starting with the number 68 and ending with the number 53.” This, too, divides attention because the driver must continuously concentrate to count backwards while trying to recall where to stop.
NOTE: This technique should never be given using starting and stopping points that end in 0 or 5 because these numbers are too easy to recall. For example, do not request that the driver count backwards from 65 to 50. Instead, ask the driver to count backwards from 64 to 49.
In this technique, the subject is asked to touch the tip of the thumb in turn to the tip of each finger on the same hand while simultaneously counting up one, two, three, four; then to reverse direction on the fingers while simultaneously counting down four, three, two, one.
Under 21 – Valid Tests?
Oklahoma has made provisions to protect our youth by making it illegal for a person who is under the age of 21 to drive a motor vehicle with “any measurable amount” of alcohol in their system, or a BAC above 0.02%. Many times these individuals are contacted in the same fashion as the older suspects; typically a violation of speeding29 or one of the 20 Visual Cues for Detecting DWI Drivers at night.30 These young people are then given the same SFST battery as are the older drivers, and the officer’s arrest decision is based upon the results of these tests.
The 1981 NHTSA sponsored study had to make provisions in their data for the presence of under 21 drivers in the field study.31 This was due to the fact that it is illegal to provide alcohol to minors in the United States, and therefore there could be no laboratory analysis to assess the performance of those under 21 during the accepted SFST battery. The lack of testing for this specific age group for SFST validation may provide a opportunity for argument for their suppression from your case.
The field sobriety test battery that is currently in use has the potential to be accurate if used properly. Many times, however, officers who are given the power to make the arrest/release decision innovate in their administration of the tests due to lack of training. These tests are standardized for a purpose; To make the testing as fair and impartial to the subject as possible. It is the subjective nature of the SFST that make them little more than roadside exercises which lead to a pre-determined outcome: another notch on the officer’s belt, and the arrest of your client.