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How to Trick the DataMaster

Sep 2nd, 2016 Breath Testing

If you are charged with a Michigan DUI offense the chances are great that you took a breath test.  A Michigan DUI charge is often based on a breath test that suggests that at the time you were driving you were at or near the legal limit. According to Michigan DUI law, a Michigan DUI conviction can be based on just this test result.

But what if the DataMaster breath test is wrong? What if the breath test result is too high?  And what if the breath test result is too high simply because of how you blew into the machine?  Some studies have in fact shown that the longer you blow the higher you go.  If this is true, what does this say about the possibility that you could be wrongfully convicted of a Michigan DUI?

The best advice is to not assume that the Michigan DUI breath test is accurate.  Instead, hire a Michigan DUI lawyer who is a specialist and who can determine if you could be wrongfully convicted of a Michigan DUI.  In the end, it may turn out that your breath test is nothing more than a lot of hot air.  In fact, Michigan DUI lawyers sometimes say the “longer you blow, the higher you go.”  This means that if you blow into the machine for a longer time your breath test will be artificially raised.

In part this Michigan breath test defense is based on an article written by Michigan’s own Dr. Dennis Simpson.  He found that there can be a difference of as much as .04 simply based on blow pattern.  His findings were published in a peer review toxicology journal.[i]

However, this opinion is not without its detractors who on the one hand agree that variation can and does occur but that one can never blow higher than the actual blood alcohol level.  Here is what NPAS’s Dave Radomski has to say about this:

Keep in mind that just because there is disagreement does not mean there is no doubt.  In fact, that’s the essence of doubt, reasonable doubt, the kind of doubt that wins Michigan DUI cases.

For a deeper understanding of this issue, here also are the parameters for sample acceptance:

1.  Minimum flow rate of approx. 3.8 liters per minute needed to trigger the flow sensor circuit.

2.  While maintaining the Min Flow rate, a Minimum total volume of 1.5 liters needs to be delivered.  (If flow rate drops below minimum, the volume calculation starts over).

3.  While maintaining the Min Flow rate, the rate of increase must slow to a max of .001 g% as shown by 2 consecutive 2 point averages (slope detection).

4.  After above 3 are satisfied, the flow rate needs to drop below the minimum to trigger test completion.

Notice that “time” is not a factor independently considered by the machine.  Dr. Hlastala has recently published an article that explains why a long blow has more alcohol, and why also this alcohol does not come from the blood but rather is a product of build up in the lungs[ii].  Dr. Hlastala is a foremost expert on lung physiology.

If you are charged with a Michigan DUI case you need a Michigan DUI lawyer who can help you understand if this defense applies to your case.

[i] Simpson, Varying Length of Expirational Blow and End Result Breath Alcohol, International Journal of Drug Testing Volume 3

[ii] Hlastala, Paradigm Shift for the Alcohol Breath Test, Journal for Forensic Sciences, Vol. 55 March 2010.