Breath Machine Procedures in Maryland following DUI Arrest (EC/IR Breathalyzer)
Following a DUI arrest in Maryland what are Maryland’s breathalyzer procedures and are the results of the breath test accurate? For answers to these and other questions, like what can potentially influence your BAC breath number, read on.
In Maryland, before a DUI Defendant can be asked to blow into a breathalyzer machine the defendant must be fully advised of their “rights” under Maryland Transportation Law Article 16-205.1. These rights are also known collectively as “DR-15” rights. They consist of a form, which should have been read or given to you to read by the cops. After reading the form to you in its entirety, they should record the time and have you sign the form thereby evidencing the fact that you were properly advised. This simple step can get rather complicated at times because it can be unclear when or if the form was read in relation to the breath sample being provided. If the evidence shows that the form was not read to the accused as required, prior to the blow, then the alcohol breath sample can be suppressed in court and at the MVA hearing. Suppressing a BAC (blood alcohol content) test in court is extremely important because once that number comes into evidence it becomes far more difficult to win the case as a DUI case can be proven by the Government on a .08 or more BAC number alone. This is known as DUI per se and its another example of the Government going after Bubba with minimal evidence but getting the conviction nonetheless.
Some other important breathalyzer procedures to bear in mind are that a certified breath tech operator must be the one to administer the test to the DUI defendant, not just any police officer. Additionally, the arresting officer in a given case is excluded from administering the test even if he happens to be a certified operator. This means there must be at least two different police officers in your case present at court if you did in fact provide a breath sample. You must however demand in writing the presence of the breath tech in court to secure his presence. If properly and timely done, the Government cannot introduce your BAC results without that officer’s presence. This is often helpful because if the officer cannot be in court on a given day that can apply some pressure to the State to lessen charges which they otherwise may not do. As a side note to the requirement that a different cop must operate the breath machine, I ask why? If the magic breath machine is supposed to be infallible, objective and accurate (which it is not) then why does it matter who pushes the fancy button on the machine and barks the order to tell you to blow? Could there be something more here which big brother is not telling us? Tell me it isn’t so…the Government would not hold back material evidence in order to gain a DUI conviction would they- exactly like happened in Washington DC or Pennsylvania for example? They would not use a breath machine that was not objective and accurate in order to convict the little guy would they?
So getting back, assuming that somebody read the DR-15 form to the Defendant what happens next? The next rule is that some officer or group of officers are supposed to watch the Defendant for 20 minutes prior to blowing in the magic breath box. The reason is to confirm that the accused does not place anything foreign in their mouth prior to providing the breath sample. Some important factors to watch for are chewing tobacco, gum, mouth jewelry, dentures, orthodontics and the like; this obviously includes food, water, drinks, bread, etc. You see foreign objects in the mouth can have an unusually detrimental effect on a BAC number. Take gum or chewing tobacco as an example, the presence of these foreign materials has the real capacity to trap small amounts of alcohol in the mouth and then when a breath sample is provided and the presence of alcohol is then multiplied many times by the magic breath box algorithm, one’s BAC score can be severely misreported on the high side.
In a nutshell, when a breath sample is provided by exhaling air out of the lungs, up the trachea, out the mouth and into the tube of the machine, the machine first tests for the presence of alcohol in the expired air, and if present, the machine has a built in algorithm which basically multiplies the fractional amounts of alcohol it perceives in the breath into a blood alcohol content number that the machine assumes is in Bubba’s body. The algorithm that the machine uses to make this calculation involves a partition ratio formula which is a matter of great dispute. I will speak to this in another article. Because the machine is multiplying and thereby extrapolating the amount of alcohol in the human body based on the breath sample provided, trapping even a small amount of “mouth alcohol” in a foreign object and then multiplying/extrapolating from there can and will seriously skew BAC results which is bad news for the defendant because the police, prosecutors and judges use the BAC number as gospel in the prosecution of DUI cases. Interestingly, there are a variety of factors which can have a serious impact on the validity and accuracy of the BAC score but neither the police, prosecutors nor most judges seem to grasp that reality. I will discuss a few of the factors here.
Do any of the following have a negative impact on a BAC score?
- GERD or
- Foreign objects in the mouth
- Blowing too hard in the breathalyzer
You bet! First, if the police want you to do something or tell them something, it is never in your best interest to do so, of that you can be sure. Thus, when deputy machine operator tells you take a deep breath and hold it and then exhale hard into his breath machine that is secret police code for I’m going to screw you as hard as possible on this blow and you are going to help me.
You see, providing a normal breath sample of exhaled air from one’s lungs is one thing; however, directing you to take a deep breath and hold it is purposely trying to screw you because this will allow maximum exchange of alcohol from one’s blood system into the alveolar sacs where the blood gas exchange takes place and out through the lungs and mouth. The longer one holds one’s breath the higher one’s number will go. There is a saying “the longer/harder you blow, the higher you go” so the cops want you to blow nice and hard to make sure the maximum blood alcohol is regurgitated from all corners of your trachea, lungs and mouth.
So essentially, you now have two elements mitigating against a proper and accurate blood alcohol number, and the cops know it and they set you up for it. Telling you to blow as hard as you can, which is not necessary to get a reading on the EC/IR machines and telling you to take a deep breath and hold prior to providing said sample. As stated above, if you have any mouth alcohol as a result of foreign objects in your mouth you will push that number even higher. Then when you get to Court and the judge hears you blew .20 or more and you claim to have had 3 beers you get labeled an alcoholic among other things and the fire and brim storm comes rolling down upon you.
Getting back to the belching and GERD (gastro esophageal reflux disorder) these things also seriously skew one’s BAC breath results and deputy magic box operator is supposed to watch out for burping episodes. If he perceives the accused do this, the breath test is supposed to be aborted and a new fresh 20 minute observation period is to begin anew. Does this happen in practice? Maybe, if you live in Oz. The cops know through their training and expertise that burping negatively impacts the BAC results. However, the cops and the brass are after the almighty conviction and then, want to get home as soon as possible. Thus, aborting a test and waiting another 20 minutes delays them getting out of the station and it also gives the accused DUI defendant 20 more minutes to dissipate alcohol through natural elimination and thus potentially lower Bubba’s score and thus directly impact on the cop’s ability to gain a conviction. So, will the cops be watching for burps or GERD? Ah…. no… but a well informed Defendant should be aware of these issues is it could have a substantial impact on their case.
What happens if a DUI accused blows a low number in the EC/IR breathalyzer machine, something lower then the legal limit of .08, does that mean there is no case and the defendant is free to go? Come on now, if you believe that, I have a bridge to sell to you in New York. On the one hand, if you blow a .08 or more, the Government can use this against you under Maryland’s per se Law to convict you of DUI based on the number alone with no other evidence to support other then a lawful stop and arrest. That is what Maryland’s Per Se law is, Transportation Article 21-902 A(2). However, if you blow a .03-.07, the Government couldn’t care less, they will prosecute the case all the same in most cases. They will take a hard look at the driving that resulted in the arrest and the field sobriety exercises you performed, as well as any other personal observations that Deputy Dawg made at the time of the arrest. Thus, engaging in field sobriety exercises is a really bad idea. As I have written numerous times and places before, these darn tests are engineered for you to fail from the word go, thus they should not be done. If you are silly enough to engage these tests, every misstep you make will be recorded and used against you to show that you were impaired while attempting to perform the tests.
Then despite blowing a low number, like .05 for example, the prosecutor will point to your poor performance on the tests and say you must have been impaired because you were unable to stand on one leg while hopping and say the alphabet backwards while singing the National Anthem. Depending on the Judge that you get or the county you are in, that very well may be enough to convict. Recently we were in Harford County (a very bad place to try any criminal matter let alone a DUI case) and our client performed amazingly well on the field tests. He actually had zero clues on two of the three tests, a feat rarely observed, this should have been shouting innocence to anybody hearing the case. However, because the client was driving the wrong way on a one way street in a part of town he was unfamiliar with, all of sudden the Court’s beloved fields no longer mattered and it was the driving pattern that took the front seat in propelling a guilty finding. Thus bear in mind, the less evidence presented to the Court, be it through a low BAC number or ridiculous roadside gym exercises, the better off the DUI defendant is because the Government and some Courts many times will simply look for something/anything to support the outcome they desire no matter how improbable it may be.
Lastly, in terms of the breath machine, what about if for whatever reason, the machine fails to obtain a reading? Either the machine is broken, or maybe the accused can’t blow hard enough, or whatever. In this circumstance, Deputy Dawg will charge you as a refusal to blow irrespective of the circumstances. (i.e. another opportunity for the Government to stick it to Bubba). Ironically, there is even administrative case law that tends to support a refusal to blow finding when a number is not registered in the breath machine. It is important in this circumstance to tell the breath operator and have him record any health condition that you may have that could impact your ability to provide a suitable sample. A “refusal to blow” has its own penalties at the MVA hearing and in Court. The fact that there is no BAC number is beneficial in a DUI arrest, but a purposeful refusal does have MVA ramifications (120 day suspension of the right to drive in Maryland or an interlock for one year).
If you have any questions regarding the foregoing, give Robinson & Associates a call anytime day or night 410-484-1111 to discuss your case.