Breath Testing for Prosecutors Breath Testing for Prosecutors

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<ul><li><p>S P E C I A L T O P I C S S E R I E S </p><p>American Prosecutors Research Institute</p><p>Breath Testingfor Prosecutors</p><p>Breath Testingfor ProsecutorsTargeting HardcoreImpaired DriversTargeting HardcoreImpaired Drivers</p></li><li><p>American Prosecutors Research Institute99 Canal Center Plaza, Suite 510Alexandria,VA 22314www.ndaa-apri.org</p><p>Thomas J. CharronPresident</p><p>Roger FlorenChief of Staff</p><p>Stephen K.TalpinsDirector, National Traffic Law Center</p><p>Debra WhitcombDirector, Grant Programs &amp; Development</p><p>George RossDirector, Grants Management</p><p>This document was produced thanks to a charitable contribution from the Anheuser-BuschFoundation in St. Louis, Missouri. Its support in assisting local prosecutors fight against impaireddriving is greatly acknowledged.This information is offered for educational purposes only and isnot legal advice. . Points of view or opinions expressed in this document are those of theauthors and do not necessarily represent the official position of the Anheuser-Busch Foundation,the National District Attorneys Association, or the American Prosecutors Research Institute.</p><p> 2004 by the American Prosecutors Research Institute, the non-profit research, training and tech-nical assistance affiliate of the National District Attorneys Association.</p></li><li><p>S P E C I A L T O P I C S S E R I E S</p><p>Jeanne SwartzCriminalistBreath Alcohol Testing ProgramAlaska Department of Public Safety</p><p>December 2004</p><p>Breath Testingfor Prosecutors</p><p>Breath Testingfor Prosecutors</p><p>Targeting HardcoreImpaired Drivers</p></li><li><p>T A B L E O F C O N T E N T S</p><p>iii</p><p>v Dedication</p><p>vii Acknowledgements</p><p>1 Introduction </p><p>3 Breath Alcohol Testing</p><p>The Development of Breath Alcohol Testing</p><p>Partition Ratio</p><p>Elements of an Evidential Breath Test Result</p><p>Types of Instruments</p><p>Challenges to Breath Alcohol Results</p><p>21 Conclusion</p><p>23 Appendix A: Detection Technology Employed in Evidential</p><p>Breath Alcohol Testing Instruments</p><p>25 Appendix B: Characteristics of Selected EBT Instruments</p><p>31 Glossary</p><p>35 References</p></li><li><p>D E D I C A T I O N</p><p>Our efforts are dedicated to the hundreds of thousands of impaireddriving victims and their families and the thousands of professionals andadvocates working to alleviate the impaired driving problem.</p><p>This monograph is dedicated to Mothers Against Drunk Driving(MADD) and the tens of thousands of MADD volunteers who promotetraffic safety and offer support to the millions of people whose lives werechanged by impaired drivers. In particular, we recognize Ms. SusanIsenberg. Ms. Isenberg is an active Mothers Against Drunk Driving(MADD) member in Miami-Dade County (MDC), Florida. She exem-plifies all that is and can be.</p><p>In 1986, a 16-year-old impaired driver killed Ms. Isenbergs 17-year-oldson, Christopher. Devastated by her loss, she endeavored to ensure thatothers would not have to suffer her sons fate. She joined MDC MADDalmost immediately, assuming various leadership positions includingMDC MADD President and Florida MADD Public Policy Liaison.Withher guidance, MDC MADD grew into a vibrant, effective and supportivevoice for South Floridas DUI victims.</p><p>Among her many accomplishments, Ms. Isenberg successfully lobbied forthe enactment of various public safety laws, helped the state obtain mil-lions of dollars in federal funds for DUI education and enforcement andinitiated the local Victim Impact Panel.</p><p>Ms. Isenbergs efforts, and those of her many MADD colleagues, areinvaluable.We can never thank them enough for the lives that have bet-tered and saved.</p><p>v</p></li><li><p>vii</p><p>A C K N O W L E D G E M E N T S</p><p>Impaired drivers are a scourge on society. More than 17,000 people died inalcohol- or drug-related car crashes in 2003.Another quarter-million wereinjured. Of course, statistics only tell part of the story. One can never placea numeric value on the pain and suffering impaired drivers cause.</p><p>In an effort to effectively address the problem, each state passed DrivingUnder the Influence (DUI) or Driving While Impaired (or Intoxicated)(DWI) per se laws.These laws criminalize driving with a blood or breathalcohol level (DUBAL) or concentration over 0.080. Law enforcementofficers use breath-testing instruments to investigate the vast majority ofthese cases.Thus, prosecutors must understand the basics of breath alcoholtesting.This monograph is designed to educate prosecutors about the basicsof breath testing theories and procedures.</p><p>The author, Jeanne Swartz, is a criminalist assigned to oversee the breath alco-hol-testing program with the Alaska Department of Public Safety. Jeanne hasa Bachelor of Science degree in chemistry and a Master of Arts in teaching.She has worked for the Alaska Department of Public Safety for six years.</p><p>I would like to acknowledge and thank Mr. Lee Cohen, assistant state attor-ney in Broward, County Florida, Mr. Patrick Harding,Toxicology Sectionsupervisor with the Wisconsin State Laboratory of Hygiene, Dr. Barry Logan,bureau director of the Forensic Laboratory Services Bureau with theWashington State Patrol, Ms. June Stein, district attorney for Kenai Boroughin Alaska, and Mr. Chip Walls, director of the University of Miami ForensicToxicology Department, for reviewing and contributing to thispublication.Additionally, I would like to recognize the many prosecutors,law enforcement officers, and highway safety personnel whose thoughtsand writings provided a foundation for this monograph.This publicationwould not have been possible without their wisdom and support.</p><p>Stephen K.TalpinsDirector,APRIs National Traffic Law Center</p></li><li><p>I N T R O D U C T I O N</p><p>In 1933, Congress ended a decade of prohibition.Automobiles wereabundant and alcohol widely available.The results were predictable:drunk drivers wreaked havoc. Impaired driving became a national issueand states passed Driving Under the Influence (DUI) of alcohol andDriving While Impaired (or Intoxicated) (DWI) by alcohol laws. In ruralareas, police officers encountered problems contacting physicians and col-lecting blood samples for forensic analysis within a reasonable amount oftime after stopping suspects. Police officers needed a tool to collect bio-logical specimens for forensic analysis that did not require medicalexpertise. Inventors focused on developing instruments to measure urineand breath-alcohol levels.</p><p>Today, law enforcement officers and prosecutors around the world relyon breath alcohol testing to investigate and/or prove their DUI and DWIcases.They use preliminary breath testing devices (also known as pre-arrest breath testing devices or PBTs) and passive alcohol screeningdevices to identify impaired drivers, evidential breath testing devices(EBTs) to prove their guilt, and ignition interlock devices to ensure thatthey do not drive under the influence again.These devices share similari-ties in sampling and, to some degree, in the analytical methods they use.All of them are capable of producing reliable results. However, EBTs areheld to much higher administrative standards than screening devices; andare subjected to strict administrative controls and safeguards, includingregular inspections and accuracy checks.This paper addresses EBTs only.</p></li><li><p>B R E A T H A L C O H O L T E S T I N G</p><p>The Development of Breath Alcohol Testing</p><p>In the early 1930s, impaired driving became a national issue. However,the legal and scientific communities were ill equipped to address the bur-geoning problem. Neither scientists nor legal scholars could defineimpairment or under the influence. Further, conventional wisdom,even in educated circles, dictated that an experienced and skilled drivercould compensate for alcohols impairing effects. Finally, law enforcementofficers lacked an easy, expeditious, and inexpensive means to measureblood alcohol concentration.The officers relied on blood and urine test-ing to measure alcohol consumption. However, each of these methodshas substantial drawbacks. Blood testing is invasive, time consuming andexpensive.Additionally, phlebotomists typically withdraw venous blood,which may be less reflective of actual impairment than arterial bloodunder some conditions. Finally, it is sometimes difficult for officers tofind doctors and nurses to withdraw the blood and for prosecutors toprocure their attendance at evidentiary hearings or trials.Although urinetesting is less burdensome, the concentration of alcohol in urine also doesnot always correlate significantly with impairment. Researchers ultimate-ly identified tools to address all of these issues: breath-alcohol testing andper se laws.A brief history of these developments follows1:</p><p>1927: Dr. Emil Bogen reported measuring blood alcohol concentration(BAC) by analyzing a persons breath. In 1938, Dr. R. L. Holcomb con-ducted further research into the risks associated with drinking alcohol anddriving using the Drunkometer, a breath-testing instrument invented byProfessor Rolla Harger. In a study involving over 2,000 subjects, Holcombcalculated that the risk of causing an accident increased six times at ablood alcohol concentration (BAC) of 0.100 and 25 times at 0.150.2</p><p>3</p><p>1See A.W. Jones,Fifty Years On - Looking Back at Developments on Methods of Blood- and Breath-Alcohol Analysis, www.jatox.com/abstracts/2001/nov-dec/index_title.htm-50k. For a detailed historyof breath testing.</p><p>2See R. L. Holcomb,Alcohol in Relation to Traffic Accidents, JAMA, 1076-1085 (1938).</p></li><li><p>1938:The National Safety Councils Committee on Alcohol and OtherDrugs (COAD) (formally known as the Committee on Tests forIntoxication) collaborated with the American Medical AssociationsCommittee to Study Problems of Motor Vehicle Accidents to establishstandards for defining the phrase under the influence.They based thesestandards, in large part, on Holcombs research.They established threepresumptive levels, defined in terms of blood alcohol concentration:</p><p>BAC Presumption</p><p>0.000-0.049 [N]o alcohol influence within the meaning of the law</p><p>0.050-0.149 Alcohol influence usually is present, but courts of laware advised to consider the behavior of the individualand circumstances leading to the arrest in making theirdecision</p><p>0.150-Up Definite evidence of under the influence since everyindividual with this concentration would have lost to ameasurable extent some of the clearness of intellect andcontrol of himself that he would normally possess</p><p>1939: Indiana and Maine adopted these presumptions in their respectiveDUI statutes.The enactment of presumptive levels shifted the focus inDUI investigations and trials from officer observations to chemical testing.</p><p>1944:The National Committee on Uniform Traffic Laws and Ordinancesincorporated presumptive alcohol concentrations in the Chemical TestsSection of the Uniform Vehicle Code. In 1948, the CAOD collaboratedwith Licensed Beverage Industries, Incorporated, to fund a research projectat Michigan State College to study the efficacy of breath-testing methods.They examined the Drunkometer, Intoximeter and Alcometer, the threemost prevalent breath-alcohol testing instruments of the time. Each ofthese instruments employed wet chemical methods that analyzed breathsamples based on chemical interactions between the alcohol molecules anda reagent.They determined that the three instruments could obtain resultsthat were in close agreement with direct blood alcohol results.</p><p>B R E A T H T E S T I N G F O R P R O S E C U T O R S</p><p>4 A M E R I C A N P R O S E C U TO R S R E S E A R C H I N S T I T U T E</p></li><li><p>1952: New York enacted the first Implied Consent Law.</p><p>1954: Dr. Robert Borkenstein invented the first truly practical breath-testing instrument, the Breathalyzer. In the mid-1960s, Borkenstein andothers utilized the instrument in the important and widely publicizedGrand Rapids study, which corroborated Holcombs study and demon-strated that at a breath alcohol concentration (BrAC) of 0.08 and abovethe likelihood of causing a motor vehicle crash increases significantly.</p><p>1959:The COAD recommended lowering the presumptive level ofimpairment from 0.150 to 0.100.The National Committee on UniformTraffic Laws and Ordinances ultimately incorporated this recommendationinto the Chemical Tests Section of the Uniform Vehicle Code in 1969.</p><p>1960s and 1970s: Inventors modified fuel cells (which were first devel-oped in the 1800s) to identify and quantify breath alcohol. In the 1970s,Mr. Richard Harte invented the first breath alcohol-testing instrumentemploying infrared spectrometry.The infrared and fuel cell instrumentsrepresented a significant step forward in technology. Unlike the originalwet-chemical methods, these instruments directly identify and measurethe physical properties of alcohol molecules themselves.Virtually allmodern instruments rely on one or both of these methods.</p><p>1971:The COAD recommended lowering the presumptive level to0.080. By 1973, every state had enacted Implied Consent Laws.At thetime, all breath testing instruments reported their results in terms ofblood alcohol concentration, implying a conversion. Jurors often had dif-ficulty understanding the conversion. (see below for discussions onHenrys Law and the Partition ratio). In the early 1970s, Dr. KurtDubowski recommended eliminating the problem by re-defining thepresumptions in terms of BrAC. In 1975, the COAD recommended thatthe Code incorporate Dubowskis suggestion. Most states now defineimpaired driving offenses in both breath and blood alcohol concentrationunits.3 </p><p>B R E A T H A L C O H O L T E S T I N G</p><p>5</p><p>3For a more detailed account of COADs efforts, See History of the Committee on Alcohol andOther Drugs, National Safety Council Committee on Alcohol and Other Drugs,http//www.nsc.org/mem/htsd/comitee.htm (1997)</p></li><li><p>Anatomy of a Breath Sample</p><p>To better understand breath-testing devices, one must have a basicunderstanding of human physiology and alcohol pharmacology.Alcoholtypically enters the body through oral ingestion of a beverage containingethyl alcohol.Alcohol enters the bloodstream through the stomach andsmall intestine by simple diffusion.</p><p>Blood transports the alcohol, which is infinitely water soluble, to thebodily tissues.Veins carry the blood to and through the lungs where theblood becomes oxygenated.Arteries then carry the oxygen-rich blood tothe brain and the rest of the body.</p><p>Lung tissue is made of air pockets, or alveoli, surrounded by blood-richmembranes.A fraction of the alcohol circulating in the blood crosses themembranes and evaporates into the alveoli. During exhalation, air isforced out of the alveoli and ultimately emerges from the lungs into thepersons breath.</p><p>During exhalation, air first emerges from the mouth/nasal area, then thethroat and upper airway, then the lungs.The highest alcohol concentra-tion in the lungs is found in the deepest portion of the lungs, where theair is in its closest proximity to the blood.When a person exhales com-pletely, the deep lung air (also known as the end expiratory air) leavesthe lungs last. If one were to monitor breath alcohol levels while a per-son exhaled, the measured level would start at a very low level and riseuntil it reached a peak or plateau as deep lung air is exhaled.</p><p>H...</p></li></ul>

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