breathalyzer

[Unregistered]

Preface: I have never, and would never, drive or fly under the influence of alcohol.

I have a big problem with the constitutionality of DUI checkpoints. I also have concerns about the accuracy of roadside breathalyzer tests, particularly if e.g. one has recently used mouthwash. I can't reliably stand on one foot and touch my nose, or recite the alphabet backwards, whether or not I'm sober.

Suppose I am pulled over while driving and the LEO suspects that I'm driving while intoxicated. I would much prefer to have a blood test than run the risk of a false positive on the breathalyzer. Am I risking my FAA medical if I refuse the breathalyzer and demand a blood test? Do I have to notify the FAA?

 

[bbchien]

Nope. But you better be darned sure you get the blood test, which you can always get even after a brethalyzer.

 

[SkyHog]

Nope. But you better be darned sure you get the blood test, which you can always get even after a brethalyzer.

There's some evidence of people being denied a blood test after a positive breathalyzer. The person is booked into custody and not allowed the blood test until after its too late to get useful results.

YMMV.

 

[SCCutler]

I have very little faith in breath tests, and there are many ways in which their results can be invalid. Frankly, I do not believe any person should be obliged to volunteer evidence against themselves.

The courts have, apparently, disagreed with me.

Some police departments around here now have a judge lined up to issue warrants authorizing LEOs to take blood samples, by force, from drivers.

Now, theoretically, they have to have probable cause to seek the warrant...

 

[PilotAlan]

There's some evidence of people being denied a blood test after a positive breathalyzer. The person is booked into custody and not allowed the blood test until after its too late to get useful results.

The standard preface is that anything regarding criminal law varies fro state to state, check your state and local laws rather than depend on what I say.

The test is given after a DUI arrest (meaning after the officer has developed probable cause that you are intoxicated based on driving behavior and/or observation of your state, such as slurred speed, odor of alcoholic beverages, and motor dysfunction, etc).

In MOST states, the US DOT standard implied consent warning is given (this is from memory, so it may be off by a few words):
"You are under arrest for driving under the influence. By driving a motor vehicle, you have already consented to a chemical test of your breath or your blood to determine the alcohol level of your breath or your blood. Refusal to submit to such a test can be used as evidence of guilt at trial.
Additionally, if you refuse to submit to chemical test of your breath or blood, your driver's license will be suspended for a period of six months for a first refusal, or for one year for a second or subsequent refusal.
Understanding this, will you submit to a chemical test?"
If yes, then you give the defendant a choice of a breath or blood test.

The courts have ruled that in the vast majority of cases, the defendant has the choice which test to take.
That said, if there are exceptional mitigating circumstances, the officer can choose. For example, one DUI I had was during a blizzard. The paramedics were all tied up with injury accidents, and the transport time to the nearest hospital (in the blizzard) was well over 90 minutes. That would make the blood results unreliable.
If the officer does not give you the right to choose, then the onus is on the officer to prove that there was no realistic way to comply with the blood test requirement.

As far as the mouthwash thing is concerned, the breathalyzer requires you to blow a very significant amount of air, and is sampling from the end of the blow (lower lung air) and ignores the beginning of the blow (mouth and upper throat air).
Google and there's LOTS of information on how they work. I'm not concerned about mouth contents.
Plus, I have to watch someone for 20 minutes prior to administering the test. Alcohol is volatile, and won't say around in the mouth that long.

 

[Obi Heed Kenobi]

...

Some police departments around here now have a judge lined up to issue warrants authorizing LEOs to take blood samples, by force, from drivers.

....

I wonder if anyone has considered filing a grievance for a loss of impartiality, actual or creating the appearance of.

It's one thing to have the police approach you in chambers with a sworn affidavit for a search or arrest warrant. It's another to enter into a cooperative pact with the police.

I can certainly see where a reasonable person might lose confidence in a judge's impartiality under the latter circumstances.

 

[Obi Heed Kenobi]

The standard preface is that anything regarding criminal law varies fro state to state, check your state and local laws rather than depend on what I say.

The test is given after a DUI arrest (meaning after the officer has developed probable cause that you are intoxicated based on driving behavior and/or observation of your state, such as slurred speed, odor of alcoholic beverages, and motor dysfunction, etc).

In MOST states, the US DOT standard implied consent warning is given (this is from memory, so it may be off by a few words):
"You are under arrest for driving under the influence. By driving a motor vehicle, you have already consented to a chemical test of your breath or your blood to determine the alcohol level of your breath or your blood. Refusal to submit to such a test can be used as evidence of guilt at trial.
Additionally, if you refuse to submit to chemical test of your breath or blood, your driver's license will be suspended for a period of six months for a first refusal, or for one year for a second or subsequent refusal.
Understanding this, will you submit to a chemical test?"
If yes, then you give the defendant a choice of a breath or blood test.

The courts have ruled that in the vast majority of cases, the defendant has the choice which test to take.
That said, if there are exceptional mitigating circumstances, the officer can choose. For example, one DUI I had was during a blizzard. The paramedics were all tied up with injury accidents, and the transport time to the nearest hospital (in the blizzard) was well over 90 minutes. That would make the blood results unreliable.
If the officer does not give you the right to choose, then the onus is on the officer to prove that there was no realistic way to comply with the blood test requirement.

As far as the mouthwash thing is concerned, the breathalyzer requires you to blow a very significant amount of air, and is sampling from the end of the blow (lower lung air) and ignores the beginning of the blow (mouth and upper throat air).
Google and there's LOTS of information on how they work. I'm not concerned about mouth contents.
Plus, I have to watch someone for 20 minutes prior to administering the test. Alcohol is volatile, and won't say around in the mouth that long.

You nailed it. Good explanation on all counts.

 

[PilotAlan]

You nailed it. Good explanation on all counts.

Thank you.

Don't get me started on my personal opinion of the legal rationale for implied consent. But it is what it is and the Supreme Court has ruled that it is valid.

That said, there is some benefit in that it does provide protection against fabricated DUI stops. A hypothetical bad officer can't just make it up to target person, because there needs to be either a breath or blood test to back it up.

 

[PilotAlan]

Frankly, I do not believe any person should be obliged to volunteer evidence against themselves.

I tend to agree with you. But it's not my opinion that carries the day.

Some police departments around here now have a judge lined up to issue warrants authorizing LEOs to take blood samples, by force, from drivers.
Now, theoretically, they have to have probable cause to seek the warrant...

Let me play Devil's Advocate here.... So breathalyzers are bad because of the terms of the 5th Amendment. So the alternative is to show probable cause and obtain a warrant (the same as with DNA in a sexual assault or murder), but that's bad too?
So I can get a warrant to draw blood to get your DNA and prove one crime (murder), but I can't get a warrant to prove another crime (DUI)?

Please elaborate.

 

[Everskyward]

You don't need to be suspected of anything to be subject to random alcohol and drug testing if you work in what the DOT considers a safety-sensitive position. I've done the breathalyzer a number of times and never thought twice about it.

 

[SkyHog]

Thank you.

Don't get me started on my personal opinion of the legal rationale for implied consent. But it is what it is and the Supreme Court has ruled that it is valid.

That said, there is some benefit in that it does provide protection against fabricated DUI stops. A hypothetical bad officer can't just make it up to target person, because there needs to be either a breath or blood test to back it up.

Not in NM. You can be arrested for DWI with a passing blow if the officer judges that your 2 beers impacted your ability to drive...the breathalyzer is only a means to guilt, not innocence.

 

[Paul Allen]

Not in NM. You can be arrested for DWI with a passing blow if the officer judges that your 2 beers impacted your ability to drive...the breathalyzer is only a means to guilt, not innocence.

Same in Ohio. One beer can get you a DUI if the officer says you were weaving. A third DUI will get you a forced blood test.

 

[Mike Smith]

There is a local lawyer who does DUI cases. He also trains LEO's on how to conduct a DUI stop that will stand up in court. However, when in court he is 100% the advocate for the defendant. His fee is about 10k, his success rate is over 80%. (btw, I know this because I used to be married to his paralegal). He advises to NEVER do FST's or breathalizer. I understand the impact on a pilot for a refusal, Im just pointing out that all your doing by submitting to those test are giving them more evidence. The LEO already believes you to be quilty, s/he is just asking you to prove it . I dont really drink so its a moot point for me, but if I were ever stopped I would refuse. My drivers license is much more important to my livelyhood than a PPC. And I mean even if I hadnt had any alcohol, I would still refuse. And as an aside, what would happen legally if you refused, went to court and were found not guilty? Would the FFA still revoke you? I know the regs say "refusal" It just seems to me if you were found not guilty it would be tough to take your ticket away. Just curious.

 

[tdager]

I tend to agree with you. But it's not my opinion that carries the day.

Let me play Devil's Advocate here.... So breathalyzers are bad because of the terms of the 5th Amendment. So the alternative is to show probable cause and obtain a warrant (the same as with DNA in a sexual assault or murder), but that's bad too?
So I can get a warrant to draw blood to get your DNA and prove one crime (murder), but I can't get a warrant to prove another crime (DUI)?

Please elaborate.

You should not be able to get a warrant for ANYTHING from someones person, period.

 

[wsuffa]

I wonder if anyone has considered filing a grievance for a loss of impartiality, actual or creating the appearance of.

It's one thing to have the police approach you in chambers with a sworn affidavit for a search or arrest warrant. It's another to enter into a cooperative pact with the police.

I can certainly see where a reasonable person might lose confidence in a judge's impartiality under the latter circumstances.

But is it within the bounds of the Constitution?

 

[steingar]

They will not do a field sobriety test on me. I will not answer any questions. I will happily submit to a chemical test of my blood, as required by law. And I will, at all times, be as courteous and respectful to the officers as I humanly can.

 

[Gary F]

Not in NM. You can be arrested for DWI with a passing blow if the officer judges that your 2 beers impacted your ability to drive...the breathalyzer is only a means to guilt, not innocence.

This was designed to insure attorney employment. An attorney might be able to successfully contest evidence based on a subjective evaluation.

 

[Obi Heed Kenobi]

But is it within the bounds of the Constitution?

Well, in terms of the 4th Amendment, yes.

But, due process entitles you to a fair and impartial judge to decide on something like a warrant.

Ask yourself: if you have a judge who is cooperating with the police - and by cooperating I mean helping to organize, being present at, and participating in, a law enforcement function - are you going to feel comfortable that your case has been impartially judged?

I can certainly see how your average person might think otherwise, even if the judge was actually impartial.

 

[Obi Heed Kenobi]

Not in NM. You can be arrested for DWI with a passing blow if the officer judges that your 2 beers impacted your ability to drive...the breathalyzer is only a means to guilt, not innocence.

Why *shouldn't* you be arrested if those two beers impacted your ability to drive? Why should other members of the public be on the line for your "those two beers didn't impair my driving that much" opinion of your abilities?

There are two levels of driving alcohol offenses, by the way. I can't speak to what they're called everywhere, but here, there is: 1) "Driving While Ability Impaired" (under a .08, but your ability to drive is impaired to the "slightest degree"); and 2) "Driving While Intoxicated" or "Driving Under the Influence" (where either: a) your driving is really bad or; b) you've got above a .08).

So, if you blow less than a .08, you're not necessarily going to be convicted of anything. But if you're at a .01, you can still be convicted of the lesser offense if your driving was at all impacted. So, if you look sleepy, if you swerve over the line, etc., you're busted if you've got booze in your system.

Might seem like a draconian, zero tolerance, approach. It is, and it's meant to be - a whole lot of people are dead because of alcohol and cars.

This is coming from someone who's driven while absolutely trashed, by the way. It's a major problem; some pretty reliable studies show that you'll get caught once for roughly every 200 times you drive drunk.

 

[Obi Heed Kenobi]

Thank you.

Don't get me started on my personal opinion of the legal rationale for implied consent. But it is what it is and the Supreme Court has ruled that it is valid.

That said, there is some benefit in that it does provide protection against fabricated DUI stops. A hypothetical bad officer can't just make it up to target person, because there needs to be either a breath or blood test to back it up.

Agreed on both points.

And, what a lot of people don't realize is that there has to be probable cause for either alcohol test to get into evidence. It's not like you can be given a breathalyzer or blood test on a whim - there has to be a justification for it, meaning that there has to be credible evidence of intoxication before giving the test.

 

[SkyHog]

Why *shouldn't* you be arrested if those two beers impacted your ability to drive? Why should other members of the public be on the line for your "those two beers didn't impair my driving that much" opinion of your abilities?

There are two levels of driving alcohol offenses, by the way. I can't speak to what they're called everywhere, but here, there is: 1) "Driving While Ability Impaired" (under a .08, but your ability to drive is impaired to the "slightest degree"); and 2) "Driving While Intoxicated" or "Driving Under the Influence" (where either: a) your driving is really bad or; b) you've got above a .08).

So, if you blow less than a .08, you're not necessarily going to be convicted of anything. But if you're at a .01, you can still be convicted of the lesser offense if your driving was at all impacted. So, if you look sleepy, if you swerve over the line, etc., you're busted if you've got booze in your system.

Might seem like a draconian, zero tolerance, approach. It is, and it's meant to be - a whole lot of people are dead because of alcohol and cars.

This is coming from someone who's driven while absolutely trashed, by the way. It's a major problem; some pretty reliable studies show that you'll get caught once for roughly every 200 times you drive drunk.

What you are referring to (DWI vs. DWAI) is a colorado specific distinction. In New Mexico, DWI is DWI. And I pass no judgment, because I am more than glad to see an impaired driver rot in a jail cell.

The specific point though is that they can take you into custody and refuse a blood test, which is contrary to Doc Bruce's point above that you can always do both. In some places, I have no doubt that is true, but be careful if that's the plan, because some places will deny you that ability.

 

[Obi Heed Kenobi]

What you are referring to (DWI vs. DWAI) is a colorado specific distinction. In New Mexico, DWI is DWI. And I pass no judgment, because I am more than glad to see an impaired driver rot in a jail cell.

The specific point though is that they can take you into custody and refuse a blood test, which is contrary to Doc Bruce's point above that you can always do both. In some places, I have no doubt that is true, but be careful if that's the plan, because some places will deny you that ability.

Looks like NM's laws are actually more lenient than they are most other places. Meaning that you can't get into trouble in NM for being under a .08 unless your actual driving is so bad that it rises to level of indicating driving under the influence (as opposed to mere impairment).

http://www.conwaygreene.com/nmsu/lpext.dll?f=templates&fn=main-h.htm&2.0

In my experience, there is no meaningful distinction between a breath or a blood test. Frankly, getting a blood test works to your disadvantage quite frequently - it can take longer, in which time your BAC is usually on the rise....

 

[bstratt]

I was invited to a "by invitation only" opening night of an auto show where the manufacturers had set up free alcohol stations. I picked up a beer and walked around for about 45 minutes, decided I had seen enough, downed the remaining half beer and started to walk out. The police had a free and voluntary breathalyzer station so I thought "What the hell...". I blew way over the limit. The cop looked at me quizzically and asked how much I had had to drink. I said one beer and as a matter of fact I had just finished the last half. He told me to walk around 5 to 10 minutes and come back - which I did. I then blew way under. He said it was that the vapours were still in my mouth and throat from downing the half beer that caused the initial overage.

 

[EdFred]

As far as the mouthwash thing is concerned, the breathalyzer requires you to blow a very significant amount of air, and is sampling from the end of the blow (lower lung air) and ignores the beginning of the blow (mouth and upper throat air).
Google and there's LOTS of information on how they work. I'm not concerned about mouth contents.
Plus, I have to watch someone for 20 minutes prior to administering the test. Alcohol is volatile, and won't say around in the mouth that long.

I was invited to a "by invitation only" opening night of an auto show where the manufacturers had set up free alcohol stations. I picked up a beer and walked around for about 45 minutes, decided I had seen enough, downed the remaining half beer and started to walk out. The police had a free and voluntary breathalyzer station so I thought "What the hell...". I blew way over the limit. The cop looked at me quizzically and asked how much I had had to drink. I said one beer and as a matter of fact I had just finished the last half. He told me to walk around 5 to 10 minutes and come back - which I did. I then blew way under. He said it was that the vapours were still in my mouth and throat from downing the half beer that caused the initial overage.

Hmmmmmmm....

 

[Matthew]

Hmmmmmmm....

heh - leave it to high school and college kids to try to beat the rap. I've heard people say that, if pulled over, go ahead and slam a beer right in front of the cop, then claim that anything that registers on the test was due to the beer you just had, AFTER you had already been stopped.

 

[Gary F]

heh - leave it to high school and college kids to try to beat the rap. I've heard people say that, if pulled over, go ahead and slam a beer right in front of the cop, then claim that anything that registers on the test was due to the beer you just had, AFTER you had already been stopped.

I assume there is no open container law in your state. In Michigan having an open alcohol containing beverage anywhere in the vehicle will get you in trouble.

 

[jesse]

I assume there is no open container law in your state. In Michigan having an open alcohol containing beverage anywhere in the vehicle will get you in trouble.

So then don't open it until the cop can see you open it. Step outside of teh vehicle first. Hope he doesn't shoot you or crack you over the head. Be sure to get everything on video. It'd be an interesting case.

No, I'm not volunteering to do it.

 

[Matthew]

I assume there is no open container law in your state. In Michigan having an open alcohol containing beverage anywhere in the vehicle will get you in trouble.

Pretty sure there is an open container law here. I don't know for sure because I don't need to worry about it. The theory is that you open the beer after you've been stopped. I never said the folks that came up with this idea knew what they were talking about.

 

[tonycondon]

ticket for an open container is probably much preferable to DWI

 

[Matthew]

But the penalty for criminal dumbassery probably gets you quite a few knots on the head.

 

[tonycondon]

open container laws have always annoyed me anyway. driving drunk, yea, drinking while driving, yea. but what is the problem with a passenger having a beer while riding down the road?

 

[Gary F]

open container laws have always annoyed me anyway. driving drunk, yea, drinking while driving, yea. but what is the problem with a passenger having a beer while riding down the road?

He might be holding it for the driver.

 

[tonycondon]

He might be holding it for the driver.

then when that driver gets pulled over he should be arrested for drunk driving and/or drinking while driving.

 

[ronnieh]

I too have never driven while drinking or ever been charged with DUI. However much of the above is based on an assumption that the cop is honest. He CAN on a whim give a breath test. He can make up probable cause and there is nothing you can do about it. Huge amounts of revenue are taken in on traffic violations including DUI. The statement of having the evidence of a breath test to clear you is a fallacy. The breathalyzer results are whatever the cop says they are. In this state if their quota has not been met and you get stopped chances are you are going to jail and you will be found guilty in city court. Now if you appeal it to a real court you might have a chance but, you will NOT beat it in a city court. Too much money involved.

 

[Matthew]

I did a ride-along with a cop buddy of mine. This was almost 20 years ago, so their equipment and techniques might be different now. If you were stopped and suspected of driving under the influence, you were given a field sobriety test. If you performed poorly enough, that was considered cause, and you were then given a field breathalyzer test. The rules in place at the time said the officer had to observe the driver for 20 minutes - this gave time for a quick 'nip' to dissipate, as has been mentioned in previous posts. If you blew high enough to get arrested, you would then be taken back to the station and given the "official" breathalyzer test with the more expensive equipment. In some cases, he said the BAC would be lower at the station because it had been long enough after drinking that the alcohol was being metabolized, in other cases the BAC was still on the rise so the station test results could be higher than the field test.

Simple enough solution - don't drink and drive.

 

[Ghery]

Simple enough solution - don't drink and drive.

That's it in a nutshell. Has worked for me for several decades.

 

[ronnieh]

Unfortunately it does not work that way in the real world. You are stopped, asked if you have been drinking. The answer is not important. Get out of the car and blow into this. Machine says you are drunk. Turn around and put you hands behind your back. You will spend the next 12 hours in jail and you may get a phone call during that time. You will not be given any other tests. You will be released on bond and appear in two weeks before a "judge" where you will be found guilty. Next...

 

[Matthew]

And the thread has come full circle.

 

[Obi Heed Kenobi]

I was invited to a "by invitation only" opening night of an auto show where the manufacturers had set up free alcohol stations. I picked up a beer and walked around for about 45 minutes, decided I had seen enough, downed the remaining half beer and started to walk out. The police had a free and voluntary breathalyzer station so I thought "What the hell...". I blew way over the limit. The cop looked at me quizzically and asked how much I had had to drink. I said one beer and as a matter of fact I had just finished the last half. He told me to walk around 5 to 10 minutes and come back - which I did. I then blew way under. He said it was that the vapours were still in my mouth and throat from downing the half beer that caused the initial overage.

Two possibilities here.

First, and most likely, was the presence of "mouth alcohol." That can be anything from having just down a drink to burping. That's the reason for the 20 minute observation period (police officer literally sits in the room with you for 20 minutes, to see that you don't burp).

Second, if they were using a "field" breathalyzer (which goes by a variety of names), those aren't particularly accurate. I think they can be off by as much as .12. They are, however, accurate enough to say that there either is or is not alcohol on the breath - which is all they're used for (they're not admissible as evidence except at a probable cause hearing).

 

[SkyHog]

Second, if they were using a "field" breathalyzer (which goes by a variety of names), those aren't particularly accurate. I think they can be off by as much as .12. They are, however, accurate enough to say that there either is or is not alcohol on the breath - which is all they're used for (they're not admissible as evidence except at a probable cause hearing).

Again, that's not true in NM. In NM, the field Alcoanalizer (as I think its called) is admissible in court, and there is no need for any further tests of any sort once a single dirty test has been administered.

NM has a serious problem with drunk driving, and they take that stuff seriously. So seriously, that they've really made it easier for a cop to get a conviction.

1st offense: Up to 6 months revoked license, mandatory Interlock for 12 Months after that and DWI Class
2nd offense: Mandatory 1 year suspended license, mandatory interlock for 36 months after that, and 30 days in jail
3rd offense: Permanent revocation. Up to 6 months in jail, IIRC.

NM is not the place you want to drive drunk (thank god).