Breathalyzer Tests Questioned By Defense Attorneys

Prosecutors, judges and juries use the results of breathzalyzer tests to convict people of driving drunk. But many defense attorneys say the tests are not always reliable

Rick, a defense attorney who declined to give his last name was one of dozens, who attended a recent seminar on breath testing. He said he had two cocktails prior to blowing into the machine and was shocked when he saw that his Blood Alcohol Content was above the state’s legal limit of .08. And surprising results such as were frequent during the seminar.

About half a dozen breath test machines sat on table tops next to loaves of Wonder bread, Altoids, Listerine and chewing tobacco. Defense attorneys say these everyday items can influence test results. Columbus attorney Jon Saia had me rinse with Listerine and then take the breath test. The results came back invalid. “As you were blowing into the machine you had so much alcohol in your mouth, or what the machine was reading as alcohol, that the machine shut down and a ticket printed out as an invalid sample. An invalid sample was caused by the fact that you have mouth alcohol, and the reading of your first breath that you blew in was higher than the reading of the amount of alcohol in the breath of your lungs.” explained Saia

Columbus attorney, Eric Yavitch, decided to try his hand at testing out the machine. Yavitch, who weighs 170 pounds, said he drank two bottles of Bass Ale about twenty minutes before the testing.

“The result was .024, significantly below the legal limit. OK, and now what are you about to do? I’m about to put a piece of Wonder bread in my mouth, chew it up a little bit. You going to have me swallow it? To see if the yeast and sugar and the by-products will give off an increased reading of alcohol.” Says Yavitch.

Saia said results after eating Wonder bread are usually similar to the ones after using Listerine: an invalid test or a very high reading. But that didn’t happen this time. In fact, Yavitch’s Blood Alcohol Content decreased.

I tested again after eating one piece of Wonder bread. And the results were like Saia predicted: an invalid test. But no one could explain why my test was invalid while Yavitch’s results were not even affected by the bread. President of the Central Ohio Association for Criminal Defense Attorneys, Richard Piatt, said that’s why the machines should be questioned. “It just goes to show you that these breath test machines may not be a valid as the prosecutors and the police think they are.” Says Piatt.

A breath test instructor and presenter at the seminar, Scott Wonder, has Esophageal Reflux Disease. Wonder said that disorder can cause false readings on a breath test, and he’s been able to prove it when he does not take his medication.

John Fusco’s business, National Patent Analytical Systems Incorporated, makes the machines that are used in Ohio as well as about 22 other states. Fusco said he trusts the technology and he wants to educate attorneys on how the machines work. “It’s better to have well educated defense attorneys. They tend to do things that are not dumb that tend to waste a lot of my time so it’s really kind of self-serving too. The more they know, the better off I am.” Says Fusco.

Attorneys weren’t the only ones learning something at the seminar. Licking County Judge David Branstool said he always thought Breathalyzers were fairly accurate.

“The Truth About Breath Testing” was presented by the D-U-I Committee of the Ohio Association of Criminal Defense Lawyers.

Comments