The whole process of subjecting someone to a breath test is based on assumptions. The assumption is that every person absorbs alcohol in the same fashion and produces the breath test results in the same way. There are many variances from person to person and within a person from time to time. Body temperature, which comes through as breath temperature, is one of those variabilities, as well as other outside factors like ingredients in mouthwashes. As such, it is important to work with a skilled DUI attorney who can help explain the various factors affecting DUI breath tests in DC and what they mean for their case.
The normal body temperature is 98.6. One person’s temperature might run a little low. It can be 96.9 and the person is not sick and has nothing wrong with them. Another person’s temperature may run high, more than 99 and they are perfectly healthy.
There can be several degrees of difference in a process that is considered normative across different people. There are no different settings on the machine that can be changed based on who is blowing into the machine. When they are doing the certifications, they are doing a calibration based on a norm and that norm has assumptions.
When a person’s temperature is elevated by a couple of degrees, the breath to blood partition ratio that these machines operate under is affected and can result in a higher test result. A two degree Fahrenheit difference could affect someone’s DC DUI test result by as much as 7 or 8 percent. When a person has a fever, they can expect to have even higher results. Their results are not accurate. The machine shows the person’s blood alcohol content as one amount that is not correct. The machine reads artificially high because the person’s temperature is higher than what the process was programmed for. Body temperature can affect the test results, so the chemical test results are one of the many factors the attorney evaluates.
Gastroesophageal reflux disease (GERD) can cause a flow back or return of the stomach’s contents. With heartburn or acid reflux, for example, the contents of the person’s stomach enters back into the esophagus and may come all the way back up to the person’s throat or even into their mouth. They can end up with alcohol in their esophagus or mouth. Anything that is between a person’s breath and the breath test machine can affect the results of that machine’s test, especially when it is alcohol.
Alcohol that is not absorbed into the person’s bloodstream, but is in someone’s esophagus or in the back of their mouth can affect the reading of the machine. The machine interprets the alcohol as coming from the person’s bloodstream and indicates the amount of impairment. In reality, the artificially high reading means the person has acid reflux or GERD and has alcohol in their stomach, it has nothing to do with what is in their bloodstream.
In any DC DUI case where law enforcement has an individual submit to a breath test, there is a 20-minute observation period as mandated under the law. During that period, the police officer is supposed to carefully watch the subject to make sure that no foreign objects are present or introduced to that person’s mouth. The person cannot be belching or vomiting because of the presence of any foreign object in the mouth. Having a person belch or any kind of vomiting can bring alcohol into the mouth that is not actually present in the person’s bloodstream. That can make the reading of a breath test artificially high. In other words, the test catches alcohol in the mouth. Cough syrup and mouthwash are examples of that.
If someone had any cough syrup or mouthwash that contains alcohol in their mouth and they blow into a machine, that machine can read the alcohol present in the mouth as opposed to the deep lung air that the machine usually reads. That can result in an artificially high reading. That is why law enforcement is not supposed to let the person use a hand sanitizer with alcohol near the mouthpiece of the machine or near the person’s mouth when they are about to use the machine because that can create artificially high and inaccurate breath test readings in DC DUI cases.
The machines are set up to detect the presence of alcohol and should shut down and alert the operator that there is a presence of mouth alcohol. An attorney questions whether the machine is operating accurately and would detect the presence of alcohol in the mouth. The attorney determines if there is the presence of hand sanitizer, mouthwash, or anything else that could result in an artificially high reading of alcohol and use that as a defense.
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