Breath test science:how California courts ignore it

February 15, 2016

breath testThe California 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.

PARTITION RATIOS AND VANGELDER (58 Cal 4th 1)

According to the 2013 Supreme Court of California decision in People v. Vangelder, partition ratios cannot be argued to a jury.  Before this case, Los Angeles DUI defense attorneys would argue that breath samples results is not the same as the breath sample results because the ratio of alcohol in blood could be very different from ratio of alcohol in breath samples.  In case of Mr. Terry Vangelder, he was prosecuted for a DUI  after he was pulled over for speeding and his breath alcohol test showed a result of .08 % BAC.  Mr. Vangelder defended his DUI at trial where a DUI defense attorney tried to introduce testimony of Dr. Hastala who testified that breathalyzers don’t accurately show the level of alcohol in blood because scientific research shows that ratio of alcohol in air in lungs is not always the same as ratio of alcohol in blood.  Therefore, it is not scientifically accurate to simly assume that a .08 % BAC in breath is the same as .08% BAC in blood.  This is based on various factors that influence the ratio of alcohol to breath and therefore breathalyzers are not as accurate as many believe.  The California Supreme court held that because legislature assumed breathalyzers are scientifically accurate, the defendant cannot challenge his DUI conviction even if they are using scientific research!  This Supreme Court decision is contrary to science so now this perfectly legitimate “partitial ration” scientific arguments cannot be used in DUI defense.

Under California Vehicle Code section 23610, a breath results are based on a ratio of either .08 gram of alcohol per 100 ml of blood or .08 grams of alcohol per 210 litter of breath.  Because a person cannot breath out 210 litters, the breathalyzers are designed to take 1.5 litters of breath for a sample.  Once a person breathes out 1.5 litters, the breathalyzer multiplies the amount of grams of alcohol it senses in a breath sample by 140 to get to 210 litters.  If that amount of alcohol is more then .08 grams, you are over the limit.  Prior to Vangelder, DUI attorney, could argue that beause each person is different, a .08 BAC in breath may be .07 BAC in blood, thus getting a “not guilty” verdict in DUI trial.

Califoria Vehicle Code 23610

California Vehicle Code section 23610 permits introduction of evidence disputing that a person is over the limit.  In subsection (c), VC 23610 allows introduction of evidence disputing impairment.  Yet, California Supreme Court decided not to allow defense to challenge any breathalyzer’s results because of the partition ratio.

Reliability of Breath Test in DUI Cases

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 dispute that and show that the ratio of alcohol in lungs’ air to alcohol in blood is not constant.  The speed of breathing, depth of breathing, body temperature, breath temperature, ratio of red blood cell to total blood volume, gender etc affect it.  For women, because they have smaller lungs the concentration of alcohol in lungs can be higher.  Also, some medical conditions can affect the ration of acohol in breath to blood.  All of the above are important in DUI defense and will change the true blood alcohol level (and not breath alcohol level which is an approximation of the blood alcohol level).  Lastly, mucus covers the entire distance the air travel to lungs, absorbs alcohol and contributes to 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).

The Supreme Court only permitted arguments in DUI trials showing presence of mouth alcohol or arguments showing  that breathalyzer was not properly used.   Los Angeles DUI attorney can still 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 realize

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

FACTS OF PEOPLE V. VANGELDER 58 CAL 4th 1  

Defendant Terry Vangelder was tried in San Diego for a DUI.  At the trial level the jury was deadlocked and could not reach a verdict on California Vehicle Code 23152(a) charge.  However, the jury convicted Terry Vangelder of Cal VC 23152(b) charge.  The VC 23152(b) charge was based on breath sample results that Terry Vangelder gave to the police upon request.  The results were  another count based on PAS (preliminary alcohol screening) and EC/IR (electrochromatograph/infrared) results that showed his blood alcohol level to be equal or above .08 percent alcohol.

Terry Vangelder appealed and the court of appeals reversed the trial court decision.  However, the Supreme Court of California reversed the court of Appeal ruling and disallowed for the defense to challenge the partition ration so that now, the 210 litters is held reliable despite science disputing it.

The science behind assuming that any person’s blood to alcohol concentration is the same as breath to alcohol concentration is based on a study by National Traffic Safety Administration in which the rate was measured at 2100:1.

This decision is very damaging to previously used arguments that breath tests are inaccurate because the conversion ratio used are slightly different for each person.  Some person’s breath to alcohol will convert at 1:210, for others it will be 1:2150 for yet another it would be 1:2050.  This difference is especially important for low blood alcohol cases, where such difference can put a defendant below limit of .08 percent

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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