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Ten Ways to Beat a Breath Test

Sep 2nd, 2016 Breath Testing

The vast majority of the approximately 35,000 citizens stopped for drunk driving each year in Michigan are subjected to breath testing in order to provide the State with evidence that they are “OWI” (operating while intoxicated).  Only a very small number of cases involve a scientific challenge to the DataMaster breath test result, and when such a challenge is raised it invariably requires that the State call an expert to rebut the claim.

A new technical note, published in the Journal of Forensic Sciences, is designed to refute these challenges, and indicates and addressed the following legal (sic) challenges to the DataMaster DMT:

  1. Potential effects of mouth alcohol
  2. Objects or jewelry in the mouth
  3. Solvents and other chemicals
  4. Endogenous acetone
  5. Gastro-esophageal reflect disorders (GERD)
  6. Acetaldehyde
  7. Breath blood partition ratio
  8. The effect of the duration of the breath sample
  9. Interferences based on the presence of acetaldehyde, gasoline or chloral hydrate and its metabolite trichloroethanol
  10. Radio frequency interference

The article discusses the methods used by three Michigan State Police employees in attempting to show that the Michigan DataMaster DMT is infallible.  These employees included Michele Glinn, Ph.D, Felix Adatsi, Ph.D., and Sgt. Perry Curtis. The fact that the paper calls the above challenges “legal” rather than “scientific” breath test challenges perhaps demonstrates the bias of the authors.

Not surprisingly the paper concludes that both the DataMaster and the DataMaster DMT breath tests are accurate and specific for breath alcohol when used correctly.  Other studies, performed by scientists at various Universities, and therefore not employed by the State Police, have come to different conclusions relative to many of the above ten legal defenses to the DataMaster.

What is particularly striking however is the superficial manner in which the research was conducted.  Only 17 subjects were tested, and there was no real attempt to actually stress-test the DataMaster by an experimental design that actually mimics breath tests in the field.  Instead the method used seems designed only to confirm that the machine has the capacity to perform as designed under carefully controlled laboratory conditions.

Ultimately this paper seems to represent is an attempt by two Ph.D level workers at the Michigan State Police Forensic Science Division to reduce the number of court appearances they are required to make to answer what they consider to be frivolous defenses to the breath test results in DUI cases.  The paper is troubling in that it will likely be given much weight by the bench and by the PAAM, most of whom have little or no education in science.  Accordingly, both are likely to be emboldened by this paper when dealing with defense experts suggesting a different opinion relative to the reliability of the DataMaster breath tests.