The following excerpt about breath testing is taken from a portion of Chapter 5 from The Georgia DUI Defense Trial Practice Manual, © 1996 William C. Head. The reader should understand that the material provided is in no way comprehensive, but outlines certain legal attacks on breath testing. Historically, many breath tests (and some refusals) have been excluded prior to trial on other grounds other than the ones mentioned in the excerpt.

5.1.2.e. Other Methods of Attacking an Intoxilyzer 5000 or the Test Results From an Intoxilyzer 5000

Intoxilyzer 5000 (Ram Check)

(1) 20 minute waiting period violations

A requirement contained in virtually every checklist or set of operating instructions of any infrared breath testing device is that of observing the person being tested directly and continuously for 20 minutes. The old Intoximeter 3000 training manual called for it. [Intoximeter 3000 Georgia Operator's Training Manual, p. 44.]. The Intoxilyzer 5000 training manual also recites the importance of the 20-minute rule [p. 31 and 32. See Appendix A for excerpts from the Intoxilyzer 5000 manual.] Georgia (following its ostrich approach) has refused to enact meaningful regulations and rules controlling this subject, and the Georgia Court of Appeals has dodged the issue of non-compliance with training guidelines establishing testing protocol due to this lack of written, binding regulations. State v. Richardson, 186 Ga. App. 888, 368 S.E.2d 825 (1988).

The purpose for the 20-minute wait is to eliminate residual alcohol and other contaminates within the mouth cavity. Compliance with the requisite "waiting period" is the holy grail of breath testing. In some states, the 20 minute period must be proven, or the state's test result is excluded in the case. State v. Sensing, 843 S.W.2d 412 (Tenn. 1992); State v. McCaslin, 19 TAM 48-24 (unreported decision, Tenn. Ct. App. 11-2-94).

Georgia follows a different rule, as mentioned earlier. Case law indicates that it goes to "weight and credibility" only, and does not bar the test result. State v. Richardson, 186 Ga. App. 888, 368 S.E.2d 825 (1988); Magher v. State, 199 Ga. App. 508, 405 S.E.2d 327 (1991). In fact, since the 2-test protocol for the Intoxilyzer 5000 has begun, the GBI has "re-instructed" breath test operators by allowing a more lax standard regarding direct observation of the subject by the testing operator.

Other states may only require substantial compliance with this requirement, while others have no such requirement. In these states, the issue may generally be raised, but it goes to weight and credibility, not admissibility. State v. Wickern, 411 N.W.2d 597 (Minn. App. 1987); People v. Terrence, 120 A.D.2d 805, 501 N.Y.S.2d 927 (1986). This is the basic holding of Georgia's courts.

The training manual for the Intoximeter 3000 in Georgia required a continuous 20-minute observation period by the testing officer. Assertions that the officer "observed" the person while driving the subject (who was sitting in the back seat) to jail are ludicrous. The new 5000 operator's training manual (containing the amended protocol) states that unless the subject regurgitates or ingests alcohol, no re-start of the 20-minute waiting period is necessary. The fact that the machine has not been proven in Georgia to be specific for alcohol, means that the observation period is even more important with the potential presence of interferant substances on the subject's breath.

(2) Not proper dedicated power source: grounded, "conditioned," surge-protected

Because minor drops or peaks in power lines can cause false, unreliable readings on the 5000, the manufacturer recommends a dedicated, grounded, surge-protected 115 VAC power supply. Preferably, a battery back-up will be utilized to assure uninterrupted power.

The absence of a self-diagnostics routine while the machine is running puts extra importance on having a surge protector. A power surge or "low voltage" spike could cause an EPROM to malfunction and possibly render a defective result. This result could be either higher or lower than the true value of the subject's alcohol concentration.

Surveillance cameras in the testing area or security video tape footage may reveal irregularities in the power supply. If maintained by the local police station, check the video-tape footage for evidence of "spikes." In one City of Atlanta case handled by the author, each keystroke on the old Intoximeter 3000 caused a simultaneous break-up of the video image on the videotape footage. Apparently, the video camera and the breath testing device were wired to the same circuit.

A visit to the testing facility can be extremely revealing. Take a camera with you. Occasionally, a circuit will be shared with microwave ovens, coffee pots, toaster ovens and other power-draining appliances. As with any computer, a dedicated power source is preferable. Dr. Jensen's experiments on the Intoxilyzer 5000 have shown it to be highly susceptible to voltage fluctuations, which can produce erroneously high results.

If you need a witness on this, take a licensed electrician with you for a surprise visit to the breath test machine location. Have the electrician check the outlet being "shared," to provide the basis for an opinion on the propriety of the "load" for that circuit. He or she can also give an opinion on "low voltage" problems and the havoc that this can play on the breath machine.

Subpoena the state's maintenance and calibration technician (area supervisor) and his/her "Supervisor's Manual" or other directives for the Intoxilyzer 5000. Use the manual and GBI directives to examine the state's own expert on the proper power source and supply.

(3) Radio frequency interference

Radio frequency interference occurs when radio waves transmitted by police or other transmitters interfere with the operation of the machine. This can come from radios, telephones, pagers or other devices. The interference occurs when a component of the machine acts as an antenna and picks up a transmitted frequency, which, in turn, creates a small electrical charge that affects the recording device of the machine, causing it to report an inaccurate test result.

The 5000 is less susceptible to this error because it is housed in a steel case. The old Intoxilyzer 4011 machines had a plastic case, and were prone to rampant interference. Unless the officer's battery pack or power source is very close to the machine, no effect should be shown. However, tests conducted by Dr. Richard Jensen have shown erroneous readings by placing a transportable cellular telephone [generating only 0.6 watts of power] next to the 5000, so RFI is possible.

If RFI is detected, the readout is supposed to say "INHIBITED - RFI. INVALID TEST." The machine is also supposed to halt the test and show a "NOT READY" readout. Once again, however, the scheduled testing of the 5000 machine for RFI and the methodology utilized by the area supervisors is deficient.

The machines are not always checked for RFI on a quarterly basis. Some are only checked semi-annually or annually. Once again, the lack of regulations poses serious problems of accountability. In addition, the method of "checking" the machine is for the area supervisor to "key" his or her radio during a test run of the 5000. These radios (or area supervisors) are tuned to the radio frequency used by the Georgia State Patrol, not the local police department's radio frequencies. No tests are routinely run at varying frequencies.

Some cases have even allowed courts to take judicial notice that electronic devices testing breath can be affected by radio frequency interference. Romano v. Kimmelman, 474 A.2d 1 (N.J. 1984).

(4) Mouth Contamination

Ethyl alcohol other than residual alcohol may be present in a person's mouth. Many items (some of which are listed below) are likely to contain their own amounts of ethyl alcohol or other volatile compounds in sufficient amounts to affect the reading given by the machine. Some items may not contain ethyl alcohol, but the machine reports these similar substances as ethyl alcohol.

(a) Typical mouth contaminants

(i) Smokeless tobacco, especially the "menthol" flavored

(ii) Dentures and the adhesives used to seal dentures to mouth surfaces

(iii) Mints, lozenges, lip balm or breath sprays containing camphor, menthol or SD alcohol

(iv) Blood in the subject's mouth from dental problems, cuts, etc.

(v) Asthma inhalers which contain alcohol or alcohol-like volatiles

(vi) Some "mace" products have an alcohol component

(b) Ineffective slope detector

As already mentioned, the "mouth alcohol" detection capabilities of the 5000 are suspect. The slope of the typical breath-alcohol/time curve of a typical person is positive (a rising slope line), especially during the early stages of exhalation, although it tends to level off as the concentration of alveolar deep lung breath in the sample increases. A leveling off of the slope indicates to the machine and the operator that alveolar breath is being tested. When the slope of a subject's breath-alcohol/time is "spiked" by an early, high reading, followed by a rapid decrease in the subjects breath-alcohol/time, the machine is supposed to abort the test due to mouth contamination. Maintenance tests are rarely conducted on the mouth alcohol detector in the presence of a measurable breath alcohol concentration.

(5) Maintenance/Calibration

(a) Not as per regulations or statutes

(i) Statutory guidelines - In accordance with O.C.G.A. § 40-6-392, the record must show that the machine was an approved type, that the officer was trained and certified, that the machine was operating properly, and that defendant was properly informed of implied consent rights. Eppinger v. State, 198 Ga. App. 889, 403 S.E.2d 829 (1991).

(ii) Georgia GBI Rule 570-9-.06(8) requires a periodic check and calibration with a record of the results maintained. Calloway v. State, 191 Ga. App. 383, 381 S.E.2d 598 (1989).

(b) The regulations in Georgia are not meaningful, so the Intoxilyzer 5000 maintenance program must be scrapped. Mayo v. City of Madison, 652 So.2d 201 (Ala. Sup. Ct., 1994).

(c) The testing reference sample for the wet-bath simulator is defective, uncertified or not properly compounded or mixed.

(d) Proper written records not maintained - In Georgia, it appears that testimony by the breath test operator that he had continuously maintained his breath test permit is sufficient foundation for the admission of the test result. Pratt v. State, 208 Ga. App. 617, 431 S.E.2d 397 (1993). No checklist is utilized in Georgia to assure that all testing steps have been followed.

(e) Training and educational background of the maintenance personnel is controlled by state regulations. Georgia's regulations for these key personnel are either sketchy, meaningless or non-existent. Therefore, a challenge similar to the Mayo case in Alabama is certain within the next 24 months.

(6) Environmental contamination of subject

(a) Workplace - Some solvents can cause a false reading on an Intoxilyzer 5000, despite its extra safeguards. Since the state still has no meaningful program to check machines for "ability to detect" each of these substances, no one from the state can truthfully testify that the machine detected only ethanol. Everyday products like Brasso can be absorbed through the skin or inhaled, just like lethal, volatile chemicals in a chemical plant. All can give false readings on an infrared breath testing machine. Not all experiments designed to show interference will be successful. Oxley v. State, 210 Ga. App. 296, 435 S.E.2d 705 (1993) (exposure to acetone - defendant's experiment held irrelevant and inadmissible since the experiment was not performed on the same Intoximeter 3000 used during the defendant's arrest); Kuptz v. State, 179 Ga. App. 150, 345 S.E.2d 670 (1986) (defendant cannot replicate exact circumstances at the time of the arrest, so he has no right to access the breath machine to conduct experiments); Blanos v. State, 192 Ga. App. 835, 386 S.E.2d 714 (1989) (no experiment can ever replicate the circumstances of defendant's arrest).

(b) Hobbies - Airplane glue.

(c) Beauty and health care products, such as hair spray, acetone-based nail polish remover.

(d) Testing room - Believe it or not, some breath testing rooms are painted with paints containing toluene, benzene, xylene, denatured alcohol, and other interfering chemicals. Hence, every reference sample is "false," because the room air that was used for the air blank was contaminated, and established a false baseline.

(7) Sample error in the mouthpiece or method of blowing

(a) Refusal caused by a breath mouthpiece with a segment of extruded plastic.

(b) Hyperventilation cause by being too upset, crying.

(c) Sitting down and bending forward, forcing air from the stomach up the esophagus.

(8) Subject's physical or medical limitations

(a) Tagamet - and other medications for ulcers and the alleviation of chronic stomach pain can lead to false positive readings on breath machines. Always ask an expert to assist with cases involving use of such drugs.

(b) Esophagheal hernia - Defective "valve" permits stomach gas laced with alcohol to push back up the esophagus. False positive readings are possible, especially with the unreliable slope detector of the 5000.

(c) Gastric reflux - Heartburn - Some people get reflux only with certain foods. Others get it with stress. The stress of arrest causes some arrestees to regurgitate.

(d) Prescription drugs - Many prescribed drugs may cause a false positive readings on a breath machine. See your PDR (Physician's Desk Reference) guide and consult an expert. More commonly, prescribed drugs plus alcohol make your client appear to be more intoxicated (or actually BE more intoxicated). Sometimes, non-prescribed medication does this (e.g., Nyquil, sinus medication contains up to 25% alcohol).

(e) Diabetes - Diabetics produce acetone when blood sugar levels are off. If acetone gets too high in their system, they will go into a coma.

(f) Dieting (ketosis) - Fasting or high protein loading can cause high levels of "ketones" to be produced in the breath. This is manifested by a distinctive "fruity" or sweet odor on the breath.

(g) Liver malfunction/disease - Although very rare, a diseased liver may cause a false reading on a breath machine. An experiment would be highly beneficial, if you can access a breath machine.

(h) Acetaldehyde production - Alcoholics produce prodigious amounts of acetaldehyde. This chemical is the first by-product produced by your liver when it metabolizes alcohol, and is very close to ethanol on the infrared spectrum. It can easily be misread as alcohol. Persons on drugs to help them quit drinking (Anabuse) will produce acetaldehyde. Also, this can occur after "binge" drinking.

(i) Body temperature - A 1° C increase in body temperature (1.8° F) can cause a .03 higher reading. So, a temperature of 103.2° F can cause a false positive reading of .06. The causes of increased body temperature are many; (a) illness, (b) menstrual period, (c) hot tub, (d) athletic exertion, etc.

(j) Male/Female differences - Men produce more of a certain enzyme which metabolizes alcohol. Women have more body fat and less water in their bodies. This can cause women to get intoxicated faster.

(k) 2100:1 ratio - Although many states have eliminated challenges on this ground, subjects vary from over 3000:1 to about 1100:1. People v. Bransford, 8 Cal. 4th 885, 35 Cal. Rptr.2d 613 (1994). An expert is needed here. Also re-read Lattarulo and 40-1-1 (1).

(l) Expert testimony - Whenever challenges to the machine's specificity for ethanol are made, or similar challenges to the machine's limitations and deficiencies, use of an expert is advisable if not downright indispensable. A list of some experts in DUI cases is shown in Form 5.11. A list of questions that you may wish to use to qualify an expert is shown in Chapter Fifteen.

(9) Implied consent advisements

(a) Not given at all - Evidence generally excluded.

(b) Not timely given - Evidence generally excluded unless exigent circumstances are present.

(i) Clapsaddle v. State, 208 Ga. App. 840, 432 S.E.2d 262 (1993) (warning not given until more than an hour after arrest).

(ii) Vandiver v. State, 207 Ga. App. 836, 429 S.E.2d 318 (1993).

(iii) State v. Lamb, 217 Ga. App. 290, 456 S.E.2d 769 (1995).

(c) Not correct wording, as required by statute

(i) State v. Causey, 215 Ga. App. 85, 449 S.E.2d 639 (1994).

(ii) State v. Hassett, 216 Ga. App. 114, 453 S.E.2d 769 (1995).

(iii) Martin v. State, 217 Ga. App. 860, 460 S.E.2d 92 (1995).

(iv) Moore v. State, 217 Ga. App. 536, 458 S.E.2d 479 (1995).

(d) Wording coercive, incorrect, or both

(i) Deckard v. State, 210 Ga. App. 421, 436 S.E.2d 536 (1993).

(ii) Erdman v. State, 861 S.W.2d 890 (Tex. Crim. App. 1993).

(iii) Howard v. State, 744 S.W.2d 640 (Tex. App.-Houston [14th Dist.] 1987).

(e) Wording of advisements is confusing or "obfuscatory"

(i) State v. Leviner, 213 Ga. App. 99, 443 S.E.2d 688 (1994).

(ii) State v. Renfroe, 216 Ga. App. 709, 455 S.E.2d 383 (1995).

(10) Refusal Due to TB Scare

Recent news reports indicate that scientists in several states, (including California) have tested the Intoxilyzer 5000 and have determined that tuberculosis (TB) bacteria can be "trapped" in the machine, thereby exposing the test subject to risk contamination. If your client's refusal to take a test was based upon this risk, and that fear is verifiable (i.e., through what was said to the officer), this is a great "refusal" excuse.