DUI BLOG

You heard me say a couple of weeks ago that breathalyzers are inaccurate and, as a result, lawyers can challenge the results of a particular breathalyzer. Lawyers, however, cannot challenge breathalyzers generally even though they are inaccurate.

This begs the question: Do you have to take a breathalyzer test?

Like many things in law, the answer is that it depends. In California, there are two different “breathalyzer” tests. One test is required by law, while the other is not.

According to California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”

The California Vehicle Code is referring to the roadside breathalyzer, called a preliminary alcohol screening test (PAS test), that officers use to obtain the evidence they need to make a DUI arrest. As an officer makes a stop, whether the officer suspects a DUI or not, they don’t have the evidence needed to arrest the driver on suspicion of a DUI. To obtain that evidence, the officer may ask the driver questions, the officer may have the driver perform field sobriety tests, and the officer may ask the driver to submit to a PAS test. In fact, the PAS test is considered a field sobriety test.

Like the field sobriety tests, the PAS test is optional. Also like the field sobriety tests, a driver should not submit to the PAS test.

In fact, the investigating officer must advise the driver that the PAS test is, in fact, optional. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”

If a driver tells the officer they consumed alcohol or the driver performs and fail the field sobriety tests or the driver provides a PAS sample that shows the presence of alcohol, the driver will likely be arrested on suspicion of a California DUI.

Once the driver is arrested, the California Vehicle Code requires that the driver submit to a “chemical test,” which can either be a breathalyzer test or a blood test. This is called California’s “implied consent law.”

California Vehicle Code section 23612(a)(1)(A) states, “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”

In other words, if you can legally drive in California, you have impliedly consented to a chemical test if you are lawfully arrested on suspicion of a DUI.

Unlike the PAS test, if you are arrested for a DUI and you do not want to provide a blood sample, the chemical breath test is not optional.  

In fact, refusing the chemical test can lead to increased penalties such as a longer DUI school, a longer license suspension, and even jail time.

To sum up, the pre-arrest PAS test is optional and you should always politely decline this test. A post-arrest chemical breath test is required provided the suspect opts not to provide a blood sample.

When people think of a DUI stop, two things immediately come to mind; the field sobriety tests and the breathalyzer. I can tell you without going into much detail here that field sobriety tests are designed for failure. If you would like more details, see many of the previous articles I’ve written on the fallacies of field sobriety tests.

But what about the breathalyzer? Are they inaccurate as well and can the results of a breathalyzer be challenged?

A number of studies have shown that breathalyzers are often inaccurate. That too is a discussion for a different time. But the more important question, since breathalyzers are generally inaccurate, is whether a breathalyzer result can be challenged in court.

Unfortunately, the California Supreme Court in 2013 ruled that, although breathalyzers are generally inaccurate, scientific evidence challenging the accuracy of breathalyzers in California is not admissible as evidence in DUI trials.

The ruling stems from the 2007 DUI stop of Terry Vangelder. Vangelder was stopped for speeding in San Diego. Although having admitted to consuming some alcohol, Vangelder passed field sobriety tests. Vangelder then agreed to a preliminary screening alcohol test (an optional roadside breathalyzer) which indicated that Vangelder’s blood alcohol content was 0.086 percent. Based on that, Vangelder was arrested and transported to the police station where he submitted to a chemical breath test (a required post-arrest breathalyzer). This breath test showed a blood alcohol content of 0.08 percent. Vangelder then submitted to a blood test which indicated that his blood alcohol content of 0.087 percent.

At trial, Vangelder called Dr. Michael Hlastala, a leading authority on the inaccuracies of breathalyzers.

"They are (inaccurate)," Dr. Hlastala testified before the trial judge. "And primarily because the basic assumption that all of the manufacturers have used is that the breath that [is] measured is directly related to water in the lungs, which is directly related to what’s in the blood. And in recent years, we’ve learned that, in fact, that’s not the case."

The judge however, did not allow the testimony and Vangelder was found guilty. Vangelder appealed and the appellate court reversed the decision in 2011. San Diego City Attorney, Jan Goldsmith, then appealed the appellate court decision arguing that such testimony would undermine California’s a per se law making it illegal to drive 0.08 percent blood alcohol content or higher.

Unfortunately, the California Supreme Court sided with Goldsmith.

“[T]he 1990 amendment of the per se offense was specifically designed to obviate the need for conversion of breath results into blood results — and it rendered irrelevant and inadmissible defense expert testimony regarding partition ratio variability among different individuals or at different times for the same individual," Chief Justice Tani Gorre Cantil-Sakauye wrote for the court. "Whether or not that part of expired breath accurately reflects the alcohol that is present only in the alveolar region of the lungs, the statutorily proscribed amount of alcohol in expired breath corresponds to the statutorily proscribed amount of alcohol in blood, as established by the per se statute."

The Court went on to say that, “Although Dr. Hlastala may hold scientifically based reservations concerning these legislative conclusions, we must defer to and honor the legislature’s reasonable determinations made in the course of its efforts to protect the safety and welfare of the public."

Sounds to me like the Supreme Court is willfully ignoring science simply because the legislature was well intentioned. Sounds like flawed logic.

While people can no longer challenge the accuracy of breathalyzers in general, people who are suspected of DUI in California can still challenge the accuracy of the particular breathalyzer used in their case.

You heard me right. Not a breathalyzer, but a texalyzer. A new device has been developed that could help law enforcement determine whether a person was using a cell phone at the time a traffic collision occurred.

Just as a breathalyzer can help determine whether alcohol in a person’s system played a part in a traffic collision, the texalyzer can help law enforcement and prosecutors determine whether a driver’s texting possibly played a part in a traffic collision.

By connecting the phone via a cord to the device, law enforcement would be able to know what apps were open and in use with a time stamp.

Lawmakers in New York and several other cities are considering allowing law enforcement to use the device to crack down on texting while driving. It is currently illegal in California to “drive a motor vehicle while holding and operating a handheld wireless telephone.” This provision includes texting while driving.

Cellebrite is the company behind the device and has been working with Ben Lieberman of New Castle, N.Y. whose son was killed in a 2011 car crash.

The driver who collided with the car whom Lieberman’s son was a passenger originally told law enforcement that he had fall asleep behind the wheel which led his car veering into oncoming traffic.

Law enforcement could not check the driver’s phone to see if he was lying without a warrant.

"We often hear, ‘just get a warrant’ or ‘just get the phone records.’ … The implication is that the warrant is like filling out some minor form," said Leiberman. "It’s not. In New York, it involves a D.A. and a judge. Imagine getting a D.A. and a judge involved in every breathalyzer that’s administered, every sobriety test that’s administered."

Leiberman was able to eventually get the phone records through a civil lawsuit which showed that the driver had been texting before the collision.

Privacy advocate groups have concerns with the device which is still in development.

"Distracted driving is a serious concern, but this bill gives police power to take and search our phones after almost every fender-bender," says Rashida Richardson, legislative counsel for the New York Civil Liberties Union. "This is a concern because our phones have some of our most personal and private information — so we’re certain that if this law is enforced as it is proposed, it will not only violate people’s privacy rights, but also civil liberties."

The bill that Richardson is referring to is New York Senate Bill S2306 which provides for the field testing of mobile telephone and portable electronic device usage while driving after an accident or collision.

Recent studies have shown that distracted driving, like texting while driving, is just as dangerous a drunk driving.

A new study by the Cambridge Mobile Telematics, a leader in smartphone-centric telematics, is one such study.

Some of the study’s key findings included: Distracted driving occurred during 52 percent of trips that resulted in a crash; on drives that involved a crash, the average duration of distraction was 135 seconds; phone distraction lasts for two minutes or more on 20 percent of drives with distraction, and often occurs at high speeds; the worst 10 percent of distracted drivers are 2.3 times more likely to be in a crash than the average driver, and 5.8 times more likely than the best 10 percent of distracted drivers.

You can be sure we’ll be keeping our eyes and ears open for whether law enforcement usage of such a device gains any traction here in California.

I’ve never hidden my belief that if a personal breathalyzer can prevent a DUI, it should be used. That being said, it seems the company behind one of the most popular personal breathalyzers on the market has settled with the Federal Trade Commission (FTC) over false claims of its accuracy.

On the fifth season of ABC’s hit show “Shark Tank,” CEO and founder of Breathometer Inc., Charles Michael Yim, won over the “shark” investors with an invention called the “Breathometer” that allowed users to a detect their own blood alcohol content through their smart phone. The device attached to smartphone, would be blown into by the user, and the smartphone would calculate the BAC through an app. Yim’s pitch included the prospect that the Breathometer could prevent incidences of driving under the influence of alcohol.  The investors were so impressed with Yim’s invention that they offered up a $1 million dollar investment in exchange for a 30% stake in his startup.

The Breathometer became a consumer hit partly due to advertisements which claimed that the devices accuracy was backed up by government-lab grade testing. According to the FTC, sales for the Breathometer totaled $5.1 million.

However, more than three years after the episode aired, the FTC announced that Yim and Breathometer Inc. had settled a claim that the device “lacked scientific evidence to back up their advertising claims.” The complaint also alleged that the company knew that one variation of the Breathometer, the Breeze, “regularly understated” blood alcohol content levels.

While Yim and Breathometer Inc. did, in fact, settle with the FTC, they did not admit or deny the FTC’s allegations.

Under the settlement with the FTC, Yim and Breathometer Inc. are barred from making claims of the device’s accuracy unless the claims are supported through “rigorous testing.” The company also agreed to notify purchasers of the product to offer full refunds.

“People relied on the defendant’s products to decide whether it was safe to get behind the wheel,” Jessica Rich, director of the FTC’s Bureau of Consumer Protection, said in a statement. “Overstating the accuracy of the devices was deceptive — and dangerous.”

Breathometer recognized the settlement on its website by stating, “We feel it is important to clarify that this settlement does not undermine our achievements in creating quality consumer health devices.”

Kevin O’Leary, one of the Shark Tank investors, responded to the settlement by stating that the company proactively stopped the manufacturing of the Breathometer in 2015 before the FTC’s initial inquiry.

I stand by my assertion that a personal breathalyzer is a good way to prevent a DUI. Just do some research beforehand on the reliability of what you purchase. According to digitaltrends.com, the best personal breathalyzer for 2016 was the BACtrack S80 Professional Breathalyzer which will run you $125. According to the website, the best smartphone breathalyzer was the BACtrack Mobile Smartphone Breathalyzer at $98, the best portable breathalyzer was the BACtrack Keychain Breathalyzer Portable starting at $26, and the best budget breathalyzer was the VastarAB120 Professional at $20.

Better to spend $125 (at most) to prevent a DUI than to spend the thousands of dollars it will cost you if you are arrested on suspicion of a DUI.

In April of 2015 I wrote about Assembly Bill 1356, written by Assemblyman Tom Lackey from Palmdale, California, which would have allowed law enforcement to use a device similar to a breathalyzer that could detect the presence of marijuana and a number of other drugs in a driver’s system.

That bill however, failed to pass the Assembly Public Safety Committee the following May because of reliability concerns.

However, with the passing of Proposition 64 which allowed the use of recreational marijuana in California, Lackey who is a former sergeant with the California Highway Patrol, has introduced a new bill similar to that of the failed AB1356.

The newly proposed Assembly Bill 6 would allow tests using saliva samples taken from drivers suspected of driving under the influence. The test would let the officer know whether a driver has recently used a number of drugs including marijuana.

“The ballot initiative passed this year to legalize marijuana will result in more marijuana consumers on our state’s highways and roads,” Lackey said in a statement. “It is imperative that we invest in a broad spectrum of technologies and research to best identify marijuana-impaired drivers.”

The measure is supported by Chief Ken Corney, president of the California Police Chiefs Assn.

“Our federal partners have demonstrated the efficacy of oral fluid testing, and we look forward to utilizing the technology at a state level,” Corney said in a statement.

While the current devices referred to by Corney tests for the presence of drugs, it does not test for drug  quantity nor impairment of the driver.

There is an established correlation between blood alcohol content, specifically the legal limit of 0.08 percent, and alcohol impairment. Unlike alcohol, however, there is no such correlation between the presence of drugs and impairment. In other words, a person can have traces of drug in their system without being impaired by that drug.

Marijuana, for example, can stay in a person’s system for weeks following the smoking or ingesting of the marijuana and well after the person was intoxicated or stoned. The purpose of DUI laws is to prevent impaired driving, not to punish sober and unintoxicated people merely because they ingested drugs at some point in the past.

It is unclear how the presence of a drug may affect the subsequent arrest or DUI case since presence doesn’t necessarily mean impairment. Until we can establish a correlation with drugs including marijuana like we have with alcohol, namely the correlation between quantity and impairment, we shouldn’t be using pushing for laws like this.

Assembly Bill 6 will be brought up for a vote early next year.