Breath test science:how California courts ignore it

February 15, 2016

breath testCalifornia Supreme Court recently eliminated several important breath test defenses for DUI cases that drunk driving attorneys in Los Angeles used to successfully defend DUI cases in the Superior Court.

According to the Supreme Court of California’s decision in People v. Vangelder, unreliability of breath sample can not always be argued to the jury.  Terry Vangelder was prosecuted for a DUI when his breath test came back as .08 percent alcohol after he was pulled over for speeding.   At trial, his defense tried to introduce testimony from Dr. Hastala who testified that breathalyzers don’t accurately show the level of alcohol in blood because recent scientific research shows that ratio of alcohol in air in lungs is not always the same as ratio of alcohol in blood.  Various factors influence the ratio and therefore breathalyzers are inaccurate.  The California Supreme court held that because legislature assumed breathalyzers are scientifically accurate, the defendant can’t challenge that even by using scientific research!  This is an absolutely incredible decision that contradicts scientific findings and ignores the “search for truth”.

Breath test are inherently inaccurate as a measure of how much alcohol person has in his blood.  The reason for this inaccuracy are that breathalyzers are manufactured on an assumption that amount of alcohol in air in the lungs is directly related to amount of alcohol in blood.  This assumption is based on research from the 1950s.  Recent researched showed that the ratio of alcohol in lungs’ air to alcohol in blood is not constant.  In fact, speed of breathing, depth of breathing, body temperature, breath temperature, ratio of red blood cell to total blood volume, the fact that women have smaller lungs and therefore higher breath test relative to blood and medical conditions, can influence the ratio and therefore the true blood alcohol level (as oppose to breath alcohol level which is an approximation of the blood alcohol level).  In addition, mucus that covers the entire distance the air travel to lungs, absorbs alcohol and contributes to possibly increased alcohol level in a breath test.  Yet, according to the Supreme Court, this deficiencies in design of breathalyzers must be ignored despite science proving that speed of breathing, depth of breathing, body temperature, breath temperature, ratio of red blood cell to total blood volume, and sex of person can cause the ratio to fluctuate (and therefore misrepresent the breath test blood alcohol level).

To its credit, the Supreme Court permitted arguments showing presence of mouth alcohol or arguments showing  that breathalyzer was not properly used.   Los Angeles DUI attorney can still cleverly argue around Vangelder’s holding by pointing out for example that proper administration of breathalyzer test need to be done in the post-absorptive phase.  Thus, failure to calculate

if the person was in post-absorptive phase when administering breathalyzer to do a breath test can help DUI defendants in Los Angeles.

If you are charged with DUI in Los Angeles, please contact our office to talk directly to Los Angeles DUI lawyer.  We can provide quality representation at affordable price.  You can call our office (818) 921 7744 .

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