Breath temperature and DUI alcohol levels


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Breath temperature and DUI alcohol levels

Breath temperature and DUI alcohol levels

Breath temperature and DUI alcohol levels

Why is breath temperature important in DUI cases?  Breath temperature and DUI alcohol levels can affect test results. As this website has mentioned in other articles about breath testing, your breath temperature is strongly associated with the level of alcohol measured.   Breath temperature and DUI alcohol levels are a known problem. Warmer breath corresponds with higher measurements of known alcohol levels, and cooler breath corresponds with lower measurements of the same known samples.

Modern breath testing machines have a temperature sensor, that can detect readings and measure the exhalation breath temperature, and correct the resulting breath alcohol concentration to the reference temperature of 34 degrees celsius.

The whole reason for the interest in the breath temperature of subjects testing for alcohol concentration is the well known influence of temperature on breath readings, under the scientific principle known as Henry’s Law.

Henry’s Law describes the proportional relationship of the concentration of a particular volatile substance in the liquid phase, to the concentration of the gaseous phase of the same compound at equilibrium.  Accordingly, when the temperature of the liquid phase increases (in breath testing for DUI cases, the core body temperature), the concentration of the compound (in DUI cases, for ethanol), in the gaseous phase (breath), will increase.

For people that have a fever, have medical problems or issues, or are ovulating, there is a natural increase in body temperature, which can affect the final reading of alcohol.

One question that has been discussed in scientific literature is whether or not  the 34 degrees celsius temperature is even correct, or whether it should be adjusted.  Why the 34 degree standard temperature in the first place, knowing that body temperature is not a constant?

The origin of the thirty four degree celsius figure as the average breath temperature seems to predate the modern scientific studies, which show the average is higher – some 34.4 degrees to 35.1 degrees celsius.  The use of the 34 degree figure seems to date to one publication, by Harger, from 1950.

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Contact our firm of Orange County DUI attorneys if you have any questions about Breath temperature and DUI alcohol levels, or need help for your case.

Orange County DUI Checkpoints announced for November 20-22

Orange County DUI Checkpoints announced for November 20-22.

Our Orange County DUI Lawyers have learned from law enforcement about the Orange County DUI Checkpoints announced for November 20-22 (the weekend of November 20-22, 2015).

Police Departments all over issue press releases because they want to get the word out. so feel free to share this information to help others.

Orange County DUI Checkpoints

In Anaheim, there will be a DUI checkpoint from 8pm To 2:30am – on Nov 20, 2015, at West Ball Road at South Brookhurst Street.

In the City of Irvine there will be an Irvine DUI Checkpoint from 8pm To 2am on Nov 20, 2015 at Bake Parkway at Rockfield. Irvine is particularly aggressive about arresting people for Irvine DUI cases, and the Irvine Police Department has a DUI task force for this purpose.

Seal Beach has a Checkpoint looking for Drunk Drivers on Pacific Coast Highway at First Street from 6pm To 3am  on Fri Nov 20, 2015.

Orange has a Drunk Driving Checkpoint from 9pm To 3am on November 20, 2015, at East Katella Avenue and North California Street.

The Santa Ana DUI Checkpoint is scheduled for November 21st (Saturday) from 9pm To 3am, and is located at West First Street and North Townsend Street in the City of Santa Ana.

In addition to the specific locations above, the Orange County Sheriff’s Department will have saturation patrols (specially trained officers, driving and looking for those driving drunk), patrolling the cities of Lake Forest, Mission Viejo and Rancho Santa Margarita. Statistically, this method is much more effective than DUI checkpoints, in Orange County and elsewhere.

Outside of the county, there are also DUI Checkpoints planned in Long Beach (on November 21), Pasadena (Nov. 20),  and Topanga Canyon on November 20th.


DUI Checkpoints are even admitted by law enforcement to be less effective than other means of removing drunk drivers from the road. But, even though DUI checkpoints don’t work, police state they had a deterrent effect preventing people from driving in the first place.  The truth is that funding in grants from the California Office of Traffic Safety (OTS), MADD, and the Federal Government ensure DUI checkpoints are used first before other measures.


The US Supreme Court, as well as the law in California, makes DUI checkpoints legal, as long as they follow certain criteria, including:

  • Decision making by supervisors: This is important to ensure that checkpoints aren’t set up in “arbitrary and capricious” locations. The court didn’t say so, but we’re guessing they wanted to avoid any accusations of racial profiling.
  • Limits on discretion of field officers: The theme of distrust of the officer continues. Strict procedures and a random selection of drivers according to a preset pattern (every third driver, for example) are suggested to avoid abuse.
  • Maintenance of safety conditions: We’re not sure how it applies to constitutionality, but the court wanted lots of bright lights and signs.
  • Reasonable location: The location should be based on relevant factors, such as areas with high incidences of DUI or DUI accidents.
  • Time and duration: There are no hard and fast rules, but the timing should be set to optimize the effectiveness of the checkpoint. In other words, put ’em up when the drunks are out.
  • Indicia of official nature of roadblock: This is more babble about bright lights and warning signs. They do mention that the lights and signage should be visible for the sake of notification to the drivers. Drivers also can’t be pulled over for avoiding the checkpoint, unless they violate a law to do so.
  • Length and nature of detention: The time of the stop should be minimized as to infringe on a person’s rights as little as possible. That means peek at the eyes, smell for booze, and look for cans. If there are no signs of intoxication, the driver should be let go. If they look or smell drunk, field sobriety tests are appropriate.
  • Advance publicity: Ingersoll was in favor of advance publicity. It referred to the deterrent effect and stated that the notice minimizes intrusiveness to a person’s rights. In 1993, the court in People v. Banks stated that publicity was not a requirement, but it certainly helps.


Contact our firm if you have any questions about Orange County DUI Checkpoints.

Don’t delay contacting us if you were arrested for a DUI.  We can start you on a plan of action today that will help your court date later. The DMV needs action within 10 days of your arrest.  Contact us today.

How to Beat a Breathalyzer Test

How to Beat a Breathalyzer Test

Laguna Beach Breath Testing in Bars

Of course, the best way to beat a breathalyzer is not to have alcohol in your system.  As a DUI defense lawyer in Orange County, that focuses on drunk driving cases only, I get asked by clients, friends, and acquaintances all the time whether I recommend that persons suspected of a DUI take a breath or a blood test.

Do you have to take a breathalyzer test?

No.  You have the right to refuse.  You have the right to refuse a field breathalyzer (also known as a PAS device, or a PBT), as they are part of the Field Sobriety Tests, which are completely voluntary.

However, you should know that not consenting to take an evidentiary test is considered a refusal.  A refusal is an automatic, in most cases irreversible, suspension of your driver’s license for one year in California.

Should I take a blood, or a breath test?

While there is a split of opinion among my colleagues that are DUI defense lawyers in the community on which is best, I generally recommend that a person take a breath test.

One of my favorite YouTube channels, ASAP Science, did a live test to see what effects various substances that are rumored to affect breath tests had on actually drunk substances.  You can see the video here:

(Other favorite YouTube channels focusing on science that I recommend are VSauce, Veritasium, CPG Grey, and Minute Physics, and our law firm also has an Miller and Associates Youtube Channel).

Note that they used what appears to be an uncalibrated instrument and tested peanut butter, honey, and a penny.  Mythbusters also did tests with other substances, with similar results.  And the news in the past few years have had stories of people trying to swallow their underwear, eating feces, and swallowing mouthwash to try to avoid being arrested for DUI. (That last substance could actually substantially increase your alcohol level).

On the DUI defense side, DUI Lawyers are always looking for substances that might create a false positive, or, compounded with actual alcohol (ethanol) create a higher blood alcohol content (BAC) result than a true reading.

Alcohol’s effect on the body is a highly tested subject, with tests comparing breath and blood levels going back decades.  It is well known that acetones, like the kind used in most paints or in industry, are a false positive for alcohol.  So, those that work around paints, solvents, or similar chemicals, can have those molecules in their skin, lungs, and show higher test values when testing is done for alcohol only.

It is interesting that the last substance they used is peanut butter.  Theoretically, if you could wash your lungs with it, the high levels of sodium, which can be found in peanut butter, could be used to neutralize ethanol by creating two byproducts – sodium ethoxide (also known as alkoxide) and hydrogen gas. But, again, the problem is that eating peanut butter involves your mouth and your your stomach, not your lungs — where the alveolar air, which is full of alcohol, is about to come from and be tested by the machine. How you would suddenly produce a jar of peanut butter inside a police station is probably the most difficult part of any attempt to “beat the breathalyzer” using this method.

One of the substances that is common in cases where an accident is involved, and is high in acetone, is the dust used on airbags.  If that is inhaled, the driver will have a higher reading for alcohol than the amount consumed.

California’s testing law, Title 17, also requires that breath testing be done in accordance with the “2/2/2” rule – that is, two tests, spaced two minutes or more apart, that must agree with a .02 of each other.  That .02% sets the breath machine’s maximum margin of error.  So, a test, can be taken at 2:00 a.m. at a .07%, and at 2:02 a.m., at a .09%, and still be considered accurate, even with different readings.

One way to keep a breath reading low is proper preparation ahead of time.  Because the alcohol molecule is hydrophilic (that is, it bonds to the water molecule evenly), being hydrated before drinking will minimize the alcohol level as a percent of body volume.  Eating before drinking also closes the pylorus, which causes absorption of alcohol to be much slower than drinking without food in the stomach.

Some factors in the mouth, like the use of listerine strips or breath sprays (or similar, all of which have alcohol), or dental work, can trap alcohol, or add alcohol, and artificially increase a breath machine result.

I have seen in DUI defense seminars, presenters blow a 0.0% on a breath measuring device, and then eat something with simple carbs, like white bread, wait, and then blow at a level with alcohol in their system.  Mouth bacteria ferments food between the teeth, and creates alcohol, that can be measured on a breathalyzer.  Some foods that are already fermented, like soy sauce, to use one common example, can register positive for alcohol on a breath testing machine immediately.

Title 17, the testing law in California, requires that the officer observe the testing subject for 15 minutes or more, to make sure that the subject does not “belch, vomit, or burp”, all of which can contaminate a test.  Often, this is not done, or the officer will record 15 minutes passing while they are out of the room, doing paperwork, or not observing the subject.

The one thing that does work (other than time, eating and being hydrated, as mentioned above, and having a properly maintained and calibrated breath device, is having a lower temperature of the air being tested.  For that reason, the air temperature within the device during testing is always recorded during a breath test.

One “trick” that law enforcement commonly uses is having testing subjects breath deeply, and hold breath, which warms up the breath.  That can artificially increase the reading, which can make a big difference in borderline cases.

The solution that works, then, is to do the opposite – hyperventilating cools down the throat, and the passage of air, and results in a slightly lower result.  That can result in a test below the legal limit, and thus would beat a DUI charge in the field.

Is there a foolproof method of going from a result above 0.08 to one below it? Nope. The best way to avoid a DUI is to not drink and drive.

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If you are charged with a DUI, you need experienced and knowledgeable counsel to help you. Please, contact us or call our firm at (877) 942-3090. 

DUI dismissal is the result of being too drunk in Georgia case

DUI Dismissal can result when a driver is too drunk to understand what he is being informed of.

A Georgia Supreme Court ruling earlier this year has created a legal trick by which drunk drivers are getting key evidence against them thrown out, by arguing they were too drunk.

“It certainly is a ruling that’s going to impact every DUI case,” said DUI defense attorney Mike Hawkins.  And our Orange County DUI Lawyers agree – it’s a valid defense under solid legal principles that could result in the dismissal of DUI charges.

“Think about consent in any context, it has to be knowing and intelligently given,” said Hawkins, which he argues a driver cannot do when they’re intoxicated.

National College of DUI Defense Attorney Lance Tyler first won this argument for his client John Williams, who was pulled over for a alleged DUI in 2012. The case went all the way to Georgia’s Supreme Court, which ruled this year that Williams may not have “actually” consented to giving his blood, and that Gwinnett State Court Judge Joseph Iannazzone should reconsider his earlier decision not to suppress the results of his blood test.

“The defendant wasn’t actually capable of an informed waiver of his constitutional rights,” Tyler had argued to Judge Iannazzone.  A week later, Iannazzone kicked out Williams’ blood test, along with the blood alcohol concentration results (BAC) for five other drivers whose cases he’d heard.

More shockingly, Hawkins has said, “If a DUI defense lawyer is not raising the ‘Williams issue’ I frankly think it’s malpractice”.

This case put the prosecutor in the strange position to argue that the defendant was not in fact, too drunk to know what was going on.  Normally prosecutors would argue that the defendant was intoxicated to the maximum amount possible.

Successful “Wiliams” arguments have been filed elsewhere in Georgia — in Cherokee, Fulton, and DeKalb counties also.

Just like in California, officers and prosecutors in GA have traditionally relied on what’s called impliedconsent, an express condition given when you get your driver’s license.

But this current case calls into question that consent, and the language officers are required to read to drivers in that state.

The driver’s blood alcohol concentration registered .225, but Judge Iannazzone threw out the evidence, noting that the driver also had “a pretty good accident” which could have ”rattled” him.

The judge’s order says, “This court finds that the State was only able to show that Defendant’s responses indicated acquiescence to the officer’s request… but was unable to show actual consent.”

DUI Dismissal to be contested.

The DUI Prosecutors in several cases in Georgia plan to appeal individual cases in that state.  Stay tuned.

Costa Mesa DUI Checkpoint results in one DUI arrest

Costa Mesa DUI Checkpoint results in one DUI arrest

Our Orange County DUI Lawyers have learned, through communication from the Costa Mesa Police Department, that a recent Costa Mesa DUI Checkpoint results in one DUI arrest and that police cited or arrested 13 others on suspicion of driving without a valid license at a DUI checkpoint on October 30, 2015.

2015-09-30 18.59.05
Orange County DUI Checkpoint Arrests

As we had previously announced, police officers had staffed the checkpoint from 8 p.m. to 2 a.m. on the northbound side of Harbor Boulevard at Peterson Place, within the Costa Mesa City Limits.

As is typical for Orange County DUI checkpoints, during the six hour operation, 1,335 vehicles passed through the checkpoint, officers stopped 529 of them for screenings and checked 22 drivers for possible intoxication, and ended up impounded five vehicles during the operation.

The LA Times also reported on this DUI Checkpoint in Costa Mesa. The Associated Press reported also that social media has changed DUI checkpoints, and as a result,  DUI checkpoints may be on the way out.

Opponents point to constitutional privacy rights as one of a number of reasons why the checkpoints are a bad idea, says Doug Honig, for one, who is with the ACLU of Washington state.

“In our society, if you’re out and about on the highway and you aren’t doing anything wrong, law enforcement shouldn’t be stopping you,” Honig says. “They should have to have an individual suspicion that you are doing something wrong and not engaging in fishing expeditions.”

Although typically not very effective, as you can see from the statistics from this particular operation, DUI checkpoints are a big money maker for law enforcement – impound fees from unlicensed drivers (as in this DUI checkpoint, where impounded vehicles and unlicensed drivers were many times greater than the one DUI arrest), plus substantial money grants are only funded for checkpoints, and not the more effective DUI Saturation Patrols, through grants from the California Office of Traffic Safety and the Federal National Highway Traffic Safety Administration, and in some cases, Mothers Against Drunk Driving (MADD).

Contact our DUI lawyer Orange County Robert Miller if you have questions about defenses in a DUI, or about handling DMV hearings in a DUI case.  We can help.

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Halloween DUIs more deadly than New Year’s Eve

Halloween DUIs more deadly than New Year’s Eve

Our Orange County DUI Attorney received information from the National Highway Traffic Safety Administration about DUI accidents.  Fatal crashes involving a drunken driver occur three times more often on Halloween when compared to New Year’s Eve. That means that Halloween DUIs are more deadly than New Year’s Eve.

“They’re always more cognizant of not drinking and driving because they know law enforcement is out there and it’s probably not the kosher thing to do,” an official said regarding the jump in accidents on Halloween compared to New Year’s Eve. “Halloween rolls around, people aren’t thinking of that as much.”

Lurking among the “100 Deadliest Days” of summer is the deadliest day of them all – the Fourth of July holiday. The IIHS studied deaths resulting from auto accidents from 2005 to 2009 and ranked July 4 as the deadliest day of the year, with 144 driving-related fatalities on average.

The most traveled holiday period of the year is Thanksgiving weekend, and DUI arrests are at their highest between Thanksgiving and the end of New Year’s weekend. Thanksgiving Eve is even referred to as “Black Wednesday,” as it may be the busiest night of the year for bars. Social binge drinking (consumption of a high volume of alcohol in a short period of time) is also common at this time of year.

The IIHS found that the second deadliest day after July 4 was September 2, followed by August 13, July 15, May 20, and November 11. Perhaps surprisingly, New Year’s Eve ranked 7th, with 130 average fatalities.

IIHS also discovered that seven of the 25 deadliest days in the U.S. occurred during August, which made it the deadliest month on the road. September and July rank as the second and third deadliest months, according to the NHTSA, and March had the fewest auto fatalities.

Many of the deadliest days occur when people celebrate special occasions and events, such as Cinco de Mayo or the Super Bowl. For example, a NHTSA study found that alcohol-related crashes claimed a life every 51 minutes on St. Patrick’s Day in 2010, accounting for 32% of all fatalities that occurred that day.

Contact us for questions.

Don’t delay contacting us if you had a DUI, on Halloween, or any other day.  We can start you on a plan of action today that will help your court date later. The DMV needs action within 10 days of your arrest.  Contact us today.