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1.  FACTUAL CIRCUMSTANCE AND PROSECUTION'S THEORY

a. A driver tells counsel he or she suffers a medical condition which affects the respiratory system and ability to breathe normally. It is possible the driver is not now and at the time of the stop was not capable of providing an adequate breath specimen.

b. The driver is physically unable to cycle the Intoxilyzer 5000. The machine would print deficient sample. That printout merely indicates the subject failed to supply an adequate breath sample within 3 minutes.

c. When the suspect reports his or her physical malady, the officer reacts - heard that one before fella (or lady), that and "just 2 beers." The officer has the deficient sample printout.

d. The law enforcement officer would testify at trial and DMV revocation hearing that the driver's conduct constituted a refusal. That opinion evidence and the deficient sample printout would be admissible on the issue of guilt at trial and would likely lead to one year loss of driver's license in the DMV hearing.

e. Based upon the officer's testimony, the Deputy DA would request and receive the following jury instruction from the court.

If you find that the defendant, refused to submit to chemical testing of his / her blood or breath to determine the alcohol content thereof, such refusal would be a circumstance, not sufficient in itself to establish the guilt of the defendant, but a circumstance which you may consider, in connection with all other facts and circumstances proven at the trial, in determining the question of the guilt or innocence of the defendant. It is for you to determine from the evidence whether such refusal to submit to chemical testing of blood or breath was caused by a consciousness of guilt or by some other innocent motive.

Based upon the officer's testimony and the jury instruction, the Deputy DA would be prepared to argue that defendant's "lack of cooperation" was a bad faith effort by defendant to hide evidence of intoxication.

2.  REQUIREMENTS OF BREATH SPECIMENS

a. PRESSURE. The subject must deliver a specimen at a pressure of six inches (6") of water (11 mm Hg). The Intoxilyzer Model 5000 has a pressure switch installed to monitor the specimen pressure. When the specimen is being presented at the proper pressure, a tone is generated to remind the operator that the pressure criteria is satisfied. (Measurements made at the Colorado Department of Health show that the air pump generates a pressure of 50 mm Hg, an average puff of breath has a pressure of 5 mm Hg and, a full breath from an average adult male has a pressure of 40 mm Hg.)

b. SLOPE. The Model 5000 has a slope detection circuit that monitors the BAC signal's rise and/or fall. Optimally, the resultant BAC climbs to a maximum then holds the maximum until a printout is achieved. The minimum amount of time required for a test is a maximum reading is 4 seconds.

c. INTERPRETATION. To interpret the above, the subject must essentially be able to blow bubbles from a straw in a glass of water 6" deep for a minimum of 4 continuous seconds. Not a great deal of pressure is required if the equipment is working properly.

3.  DEFENSE

Testing can be conducted at the pulmonary department of a competent hospital to determine whether an individual has the capability to deliver a breath specimen which meets the criteria required by the Intoxilyzer Model 5000. It is called spirometry with bronco dialator. The legitimacy of the defense can be scientifically proven or disproven. If the driver had the capability to provide an adequate specimen, that fact would be detected and we naturally would not raise a frivolous defense. If the driver attempted to pull his breath specimen or otherwise skew the test, that fact would also be established. However if the driver was physically not capable, this is a very important fact which would likely affect plea negotiations and / or final outcome of a trial.

Physical inability to provide an adequate breath specimen would be a defense to the state's allegations of chemical testing refusal in the underlying DUI criminal charges. The issue of refusal may be submitted to a jury, and it is the jury's province to consider this evidence, along with all other evidence in determining guilt or innocence.

If a driver were physically incapable of providing an adequate breath specimen, established by reliable medical evidence, this type of argument would back-fire on prosecutors. Quite frankly I suspect a jury would be infuriated with an officer who did not offer a blood test when a suspect was medically not capable of submitting to a breath test. If a prosecutor were to make this type of argument, a jury would likely also be upset with the Deputy DA. Given my experience, the entire verdict would likely be affected by the officer's conduct and an over-reaching argument by the prosecution.

Medically proven lack of capacity to provide an adequate breath specimen would be a defense to a license revocation proceeding wherein the State alleges the driver refused a chemical test. CRS 42-2-126. Winning a DMV hearing would avoid the revocation itself and the SR-22 proof of insurance requirement, a potential major expense. A one year refusal revocation runs consecutive (back to back) to any other license suspension or denial.

Expense justified for spirometry testing with bronco dialator?   decide for yourself - I think so.

4.  REALITY

I have represented multiple clients who have raised this defense to the chemical test failure. Even though the cost is not terribly expensive, most have immediately recanted the allegation when confronted with my request for scientific pulmonary testing. The clients have admitted the initial allegation was without merit.

Of those few clients who truly believed they respectively did not have the capability to cycle the intoxilyzer, when tested each had a great deal more lung capacity than they gave themselves credit. Alas, the defense lays in wait. Other legitimate defenses exist, too.

Sucking on the intoxilyzer mouthpiece produces a different error printout message. A competent defense attorney will quickly ferret out false claims and protect a client from committing blunders in presenting defenses to the prosecution or to a jury.

        Alcohol absorption varies from one person to another, and varies within the same person from time to time.  Stomach contents can have a major effect upon alcohol absorption.  Therefore, alcohol absorption can not be predicted with accuracy.

        Metabolism (elimination) can be predicted.  Most pathologists will testify it ranges between 0.015 - 0.020 grams of alcohol per 100 ml blood per hour.  The more common testimony is 0.02 g / 100 ml per hour.

        Although absorption skews any estimate, "average" charts exist.  If an attorney computes an estimated blood alcohol concentration (BAC) which is highly inconsistent with consumption reported by the client, two logical explanations exist.
            1.  The first explanation is that the client consumed more alcohol than he / she recalls or is reporting.
            2.  The second explanation is mislabeling of blood vials at the time of state draw.  

        A phlebotomist is a person who draws blood.  If multiple blood vials were in the phlebotomist's tray and not labeled immediately upon drawing, it would be possible to inadvertently apply identification labels to the wrong vials.  In such event the client's reported BAC would in fact be the blood alcohol concentration of a different person.

        In a blood test case, the state should have preserved a second specimen vial of blood drawn at the time of the arrest.  The second vial may have been retested by an independent laboratory hired by defense counsel.  If not transported for defense testing of ethanol (alcohol) or NaFl (preservative), the second vial should be in the custody of the law enforcement testing laboratory.  Wherever located, such vial can be transported to an independent laboratory equipped for DNA testing.

        Two new vials of blood can be drawn at an independent laboratory and transported to the DNA testing laboratory.  To preserve evidentiary admissibility, identification precautions are taken.  The client must identify himself / herself with a photo ID.  Fingerprints are taken and placed on the chain of custody form.  The blood draw is witnessed and photographed - evidence attached to the chain of custody form.  The chain of custody form is kept with the new blood specimen and notations maintained from draw through DNA testing.

        The DNA testing laboratory can identify with a high degree of certainty whether the original vial of blood drawn by police in fact belongs to the client.  

        If the state's blood specimen belongs to a third person, prosecutors have lost a significant piece of evidence.  The error and DUI allegation based upon false evidence would likely inflame a jury.
        If the state's blood specimen belongs to the client, the client has either suffered a memory lapse or has given defense counsel false information regarding the amount of alcohol consumed.
        Either way, the issue of inconsistent blood alcohol concentration has been laid to rest.

        This is an expensive process; approximately $600*.  However given the evidentiary importance of blood alcohol concentration, if a significant inconsistency arises it is worthwhile to obtain the scientific evidence.  
            *Actual costs apply - subject to change by providers without notice.  Above is only a non-binding estimate regarding anticipated out of pocket litigation expense.

        Expense justified for independent blood draw and DNA testing?   decide for yourself - I think so.

Copyright © 1983 - All Rights Reserved - Document Revised: March 17, 2010
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