It will be sad day for humanity when we allow people to be tried and convicted by a machine.  The State of Florida places a lot of faith in its Intoxilizer 8000, manufactured by CMI, Inc., which we affectionately refer to as “the breath machine.”  The state places enough faith in its breath machine to use its results to prosecute people for DUI and impose increasingly severe, life-altering sentences.  Does this frighten you?  It should.

In fact, the breath machine is not infallible, nor are the human beings who inspect, calibrate, maintain and operate it.  The Intoxilizer 8000 is not particularly smart or sophisticated, as machines go.  It is operated by law enforcement officers who have no scientific background or training, under less than ideal circumstances – usually in the middle of the night in a police station.  While the state would like us to believe the test results have an aura of scientific validity, the truth is that the machine’s basic methodology and the manner in which it is maintained and operated do not meet modern scientific standards.

The breath machine relies o­n infrared spectrometry to detect ethanol.  However, the machine cannot effectively distinguish between ethanol and several other chemical compounds that share certain similar characteristics.  These other chemicals may be found in human breath due to various health and environmental factors.  Hence, the breath machine undeniably produces false positive results.

The breath machine relies o­n certain assumptions about its human subjects.  These assumptions are not always correct.  For example, the machine converts breath alcohol levels to blood alcohol levels by assuming that its subject has a “partition ratio” of breath to blood alcohol of 2100:1.  However, the 2100:1 ratio is o­nly an average.  In reality, the partition ratio of individuals varies from 1400:1 to 2800:1.  This means that a breath reading of 0.08% (the legal limit in Florida, which gives rise to a presumption of impairment) may actually vary from 0.05% to 0.11%.  The Intoxilizer 8000 does not have the capability of adjusting based o­n the subject’s individual partition ratio.  Since the state uses the machine’s results to convict its citizens of a serious crime, shouldn’t they use a methodology that can adjust for individual partition ratios?

The breath machine also assumes that your breath temperature is a normal 34 degrees centigrade.  If you are running a fever, your breath temperature increases and so does your breath alcohol reading.  The result will increase by 6-7% for every degree above 34 degrees centigrade.  It would be easy enough for law enforcement personnel to take your temperature before administering the breath test.  Of course, they never do.

Another basic shortcoming of the breach machine is that it does not trap and preserve the breath sample.  The technology is available and is used by several other states.  Considering what is at stake, why are the citizens of Florida denied such an important safeguard?

Interestingly, Florida law does provide a safeguard with which most people are unaware.  According to Florida law, a person submitting to a breath test may request an independent blood test.  Law enforcement is under no obligation to advise you of this right.  However, the law provides: "The law enforcement officer shall not interfere with the person’s opportunity to obtain the independent test and shall provide the person with timely telephone access to secure the test, but the burden is o­n the person to arrange and secure the test at the person’s own expense."  The failure of the law enforcement officer to meet this obligation may result in the exclusion of your breath test results from being considered in court.

There are many other defects in the breath machine’s basic methodology and the manner in which it is tested, calibrated, maintained and used.  In each case, we evaluate the state’s evidence to determine whether they have complied with all of the testing and maintenance requirements prescribed by law.  We also determine whether the breath test was administered by a certified operator in compliance with applicable rules and regulations.  Here are some of the ways, not previously discussed, in which we can beat the breath machine:

• Belching, burping or vomiting.  Regurgitating, refluxing or vomiting can introduce pure alcohol into the testing chamber, resulting in inflated readings.
• The presence of acetone in breath.  The Intoxilizer 8000 can confuse acetone with ethanol.  Acetone may be present in the breath due to diabetes or fasting.  The technology for differentiating acetone and ethanol is available.  Of course, Florida does not use the better technology.
• Mouth alcohol.  The presence of residual mouth alcohol produces inflated readings.  This can occur due to dentures, partial plates, mouth washes, breath sprays, over-the-counter inhalers and other factors.  
• Inhalation of air bag talc.  A vehicle’s air bag deployment in an accident causes the release of thousands of small particles of talc into the passenger compartment.  Studies have shown that the driver’s inhalation of these particles and later exhalation during the breath testing can result in inaccurate results.
• The 20-minute rule.  Law enforcement is required to observe the subject for a continuous period of 20 minutes before administering the breath test.  The purpose of this observation is to determine whether the subject has belched or burped prior to testing.  Violation of this rule may result in the exclusion of the breath test results from evidence in court.
• Radio interference.  The use of a radio, walkie-talkie or cell phone in the testing room can produce inaccurate results.
• Faulty instructions to keep blowing.  If you were instructed to keep blowing into the machine, the results could be inflated.
• Chemical exposure.  Exposure to certain chemicals can produce false positives, due to the breath machine’s inability to distinguish between several chemical compounds sharing certain characteristics of ethanol.
• Medical conditions.  Certain medical conditions can produce false positives, due to the breath machine’s inability to distinguish between ethanol and certain chemical compounds produced by the body due to these medical conditions.
• The relation of test results to the time of offense.  There are various issues relating to the time that elapses from your last drink until the time you are tested.  A person’s blood alcohol level increases over time as alcohol is gradually absorbed into the system.  It is possible for a person’s blood alcohol level to be within normal limits at the time of operating a vehicle, but to be above the legal limit at the time of testing.  This commonly occurs if the person consumed alcohol shortly before driving. One thing is for sure: your blood alcohol level at the time of testing is never the same as at the time of driving.  This, in itself, can create enough reasonable doubt to result in an acquittal by a jury.

We do not want to see you convicted by a machine.  Not by this machine.  Not o­n our watch.  Not without a fight.