Author of "The DUI Answer Book" A Citizen's Guide to Understanding Your Rights

Machine Breathing Pattern Errors


Welcome back to the DUI Trial Lawyers Academy. This podcast is brought to you by silvaandsilva law.com, great lawyers helping great people. And now for your host, sought after speaker, avid mountain bike racer and renowned DUI trial lawyer, Patrick Silva.
Patrick Silva:
Welcome back to the DUI Trial Lawyers Academy. This is your host, DUI trial lawyer, Patrick Silva. And today's episode we're going to be discussing breathing pattern errors and exactly what does that mean? First couple of things, we have hyperventilation and hypoventilation. So hyperventilation is when you're taking those short breaths, you might see it on TV a person's breathing into a bag because he can't get enough oxygen into their lungs. And hypoventilation is when a person's not breathing deep enough. Of course, whether your person is hyperventilating or hypoventilating may or may not be the case, but it's something that you're going to at least look for in audio, video. See what the officer wrote down. See how the person is acting. If we're talking, how is it affecting the breath machine?
Well, if we look at an article from A.W. Jones, so A.W. Jones is a well-known author on the subject of the effects of alcohol on the human body and in his article titled, Physiological Aspects Of Breath-Alcohol Measurements, and that it could be found in Alcohol, Drugs and Driving. It's a 1990 publication. It's on page 1 through 25 of the 6 edition. And what A.W. Jones stated in that article is that there can be a plus or minus 15% variation in a breath test result based on whether the person is hyperventilating or hypo ventilating.
So hyperventilation, those short breaths, that's what's going to get the person to have a higher breath result. Higher than what the blood truly is. And let's just start off with a 0.10 breath result. If your person is really anxious, officer says, "They're having a hard time breathing". You hear a person on it, say, "I can't breathe. I'm having a hard time". They're nervous. Good chance their hyperventilating. So if we take 15% of a 0.10, what is that? Well, that's a 0.015. So you actually take your 0.10 down to a 0.085, just with hyperventilation.
Now, the next thing we're going to talk about, it's called forced agreement. That is something you really need to look out for is when a person has breath test one, let's just say, it's a 0.10. And you're able to see on audio/video, the person blowing, but all of a sudden, you don't hear the click on the machine that means a full breath capture. If you don't hear the full breath captured, then the officer may have pulled the device away from the subject's mouth prior to full exhalation. And if the officer had the ability to actually see the results as it climbs, that's called force agreement. It's something that at least to look for, it might not always happen.
Now, sometimes you might run into this type of scenario. The person actually is holding their breath before they blow into the breath machine. Well you might be thinking well, how's that going to affect the machine? Well, according to A.W. Jones in an article titled, How Breath Techniques Can Influence the Results of Breath-alcohol Analysis. That is a 1982 article, and that could be found at Med, Science Law page 275. What Jones is saying is that with breath holding, let's say 30 seconds before expiration, the concentration of ethanol increases by 15.7% plus or minus 2.24%. So what does that mean? There's a range of approximately 13% to 18%. Let's just go with the 18%. If your client blew a 0.10, and we take let's round it up to 20%. Well, that's a 0.02. If you minus a 0.02, from the 0.10, that puts them at a 0.08. So it's definitely something that you want to look for.
What if your person just happens to keep their mouth closed before they exhale into the breath machine? Well, that's going to be an indication of shallow breathing. Shallow breathing by itself can increase the ethanol concentration by 7.3%. And that's going to be in an article by again, A.W. Jones, How Breath Technique Can Influence the Results of the Breath-Alcohol Analysis. And again, that's the same location. It's a 1982 article, page 275 of the Med, Science Law. So if we're going 7.3% on keeping your mouth closed, 7.3%, let's take it basically 10%. So a 0.007, if your person blew a 0.10, and it's just shows on the video he may have had some shallow breathing and his mouth closed. Well, that's going to kick it up almost a 0.01.
If your client can be seen on video or heard on the audio that they're exhaled breath is just a slow exhalation and it takes about 20 plus seconds. And I haven't seen that too often, but that brings it up almost 2% to 3%. And again, that's in the same article by A.W. Jones, How Breath Techniques Can Influence the Results of Breath-Alcohol Analysis. What if your client has micro burps? So not everybody walks around if they have to belt, they go and let a ripper out. Sometimes it's just a micro burp where it's just a little bit that comes through the upper sphincter muscle valve and into the oral cavity. Well, this is an interesting article and this again, it's just giving you food to fight with. Alcohol in the oral cavity arising from recent alcohol indigestion, regurgitation of stomach content containing alcohol, or by belching of gas containing sufficient amounts of alcohol can contaminate the breath sample and cause falsely elevated results.
All right. So how are you going to get that into evidence? Well, if your client's going to testify, maybe he has a belching problem. He's gone to the doctors for excessive gas. Maybe he has stomach gas problem. Where are you going to find this article? This is written by Patrick Harding, it's called Methods For Breath Analysis. That's in the Medical-Legal Aspects of Alcohol. It's the Garriotts in this, I'm citing this from the fourth edition. Garriott is up to the sixth edition now. So I'd have to double check what the six edition page is, but it still should be there. But what it does, it's giving you scientific literature that says, "Yes, if a person has gases and their belching and the alcohol comes from the stomach into the oral cavity, that can contaminate the breath sample".
Well, along with showing that the breath sample was contaminated, you're going to have to double back and get back into the field sobriety test and show how there's a disconnect between the alleged breath result and what the person's performance on the field sobriety tests. Because let's say your client performs really good and the officer is saying, "Well yeah, I really didn't believe that they blew a 0.14. They didn't seem impaired". And again, you're looking for signs of sobriety, that it's going to be the way they talk. The person has a 0.14 or 0.16, they're going to be definitely impaired, sluggish speech pattern. A little faster than what I'm doing right now. My brain was wandering, but you're going to focus on the disconnect.
So right now we're just talking about breathing patterns. In the next episode, I'm going to get into the temperature error. And that's going to be really interesting. You're going to like that one. All right, you know what to do. This is your DUI trial lawyer, Patrick Silva. Put on the boxing gloves, get in the ring, have a great fight. Over and out. Bye.
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​Who do you want as your attorney? The Master or the student? Patrick Silva has over 20 years of DUI experience, he has been published in DUI reference books, he has spoken in front of hundreds of attorneys at conferences, taught classes to lawyers on his secrets and strategies, and has a nationally listened to podcast dedicated to teaching other DUI lawyers how to win.  (909)798-1500