How to Beat a Breathalyzer Test


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Tag Archives: dui attorneys

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.

Contact us.

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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. 

Setting up opposing counsel for DUI arrest might disbar three lawyers

Setting up someone for DUI might disbar lawyers

Here is an interesting story I came across related to our DUI defense practice. As a DUI lawyer in Orange County, CA, I am always looking for interesting DUI situations, and the ABA Journal had a story about three lawyers on the opposite side of a civil defamation case from a lawyer who was arrested for DUI, who they had “set up” for the DUI arrest. Setting up someone for DUI might disbar lawyers in this case.

If an "overly flirtatious" paralegal asks you to drive her car and her home, "just say no" or you could face a DUI arrest.

Not the real Tampa steakhouse where the DUI arrest started from

This Florida case underlines the old saying in law that civil attorneys can be anything but civil. In January 2013, three lawyers at a law firm had a flirtatious paralegal, join opposing counsel for a night of drinking at a Tampa steakhouse bar. The opposing attorney, C. Philip Campbell, was arrested as he drove away in the paralegal’s vehicle, following a flurry of phone calls and texts between the lawyers and the paralegal.

The three lawyers asserted their Miranda rights, and invoked the fifth amendment, not answering or admitting to anything in depositions or in their bar proceedings. But the officer involved, who was removed from the force, testified that he was asked to arrest Campbell 60 days earlier than this incident, by the same three attorneys.

The driving under the influence (DUI) case was completely dismissed.

Often DUI cases are dismissed for a variety of reasons.  In this case, there was invalid probable cause for the DUI, and police entrapment, but other reasons, like an invalid breath test, or an invalid blood test, or an inability to prove driving in a DUI, or a valid legal defense that allows DUI, can also be asserted by the defense.

If you have questions for our Orange County DUI Lawyer, contact our firm.  We are always happy to help you.