© 2014 Timothy I. Mac Master, Attorney at Law

 

Breath Alcohol Testing

 

      The mere fact that you took a breath test does not mean that the result of the test can be used as evidence against you. Evidence of a breath alcohol test result may be able to be suppressed in the criminal case and/or the ADLRO case if legally required procedures for administering the test were not complied with or properly documented.

 

"The (a)(3) Charge"

 

     HRS §291E-61(a)(3) states:

 

A person commits the offense of operating a vehicle under the influence of an intoxicant if the person operates or assumes actual physical control of a vehicle with.08 or more grams of alcohol per two hundred ten liters of breath.

 

    The legal limit for breath alcohol in Hawaii is .08.  The more precise and technical description is .08 grams of alcohol per 210 liters of breath.  This is a very small amount.  It is basically only 8 one hundredths of a gram of alcohol vaporized in a 55 gallon barrel's worth of breath. If you are operating a vehicle on a public road with more than .08 in your breath, it doesn't matter how unimpaired your driving, reaction time or abiloity to think clearly is, it is still legally presumed that you are "under the  influence."

 

"The (a)(1) Charge"

 

     Even if your breath test result was less than .08, you may still be able to be convicted under the (a)(1) part of the DUI statute if the state can prove beyond a reasonable doubt that you were operating the vehicle with "an amount sufficient to impair the person's normal mental faculties or ability to care for the person and guard against casualty." See  HRS §291E-61(a)(1).  However, an (a)(1) case based on evidence of bad driving, appearance and demeanor and field sobriety test performance, is usually much more difficult for State to prove than an an (a)(3) case based on a breath test result.  

 

     Even if you took a breath test, and failed it, your case may still be able to be won by blocking the admission of the breath test result and then arguing that the remaining evidence is insufficient to prove an (a)(1) charge beyond a reasonable doubt.  

 

Blocking Breath Test Evidence

 

     To be admissible as evidence, and to create a legal presumption that the driver was under the influence, the breath test had to be:

 

1.  Administered in a proper manner using "approved analytical tecniques"; 

 

2.  Obtained within three hours from the time that you were operating your vehicle; and

 

3.  Is over the .08 limit.

 

     As a practical matter, if evidence of a breath test result above .08 is admitted in to, and then manages to remain in, your evidentiary record in the criminal case, and if you have no other outcome determinative legal issues in your favor (e.g. a vehicluar stop without reasonable suspicion or an arrest without probable cause), you will probably be convicted.  The same is basically true with respect to an ADLRO case.  However, just because an incriminating test result was produced when you were under arrest, that does not mean that evidence of it will ever make it in to your evidentiary record in the criminal case or the ADLRO case.  Mr. Mac Master has had many clients found "not guilty" in cases where the State had incriminating breath test evidence, but Mr. Mac Master was able to use Hawaii's law and Rules of Evidence to block the State's efforts to admit it.

  

The Intoxilyzer Operator: An Additional Witness

 

     The breath test will occasionally be administered by the arresting officer.  However, the usual procedure for the administration of breath tests involves having someone other than the arresting officer administer the breath test. If this was the case the State will need at least one additional witness (i.e. the additional officer that administered the breath test) before it will be able to admit evidence of the breath test in your criminal case.

 

     Your breath was probably tested with an Intoxilyzer 8000.  The person who administers the breath test is called the Intoxilyzer Operator.  It is frequently the case that the State has available for trial the witness(es) it needs to prove an (a)(1) charge, but for whatever reason, the Intoxilyzer Operator is not available to testify. If that is the case, the breath test evidence will not be admissible. In such circumstances, the State is likely to ask the Court to continue the case to another date when the Intoxilyzer Operator may be available to testify.  If the State has already had a continuance, the Court may not allow it to continue the case a second time.  If that is the situation, the State will either have to do the trial without the breath test evidence, or the case will be dismissed.   

 

The Inherent Margin Of Error

 

     The Intoxilyzer 8000 is capable of producing results that are quite accurate.  However, it is not a perfectly accurate measuring device.  It has an inherent margin of error of at least .003.  The inherent margin of error may even be as high as .005.  If the inherent margin of error is .005, a .084 test result could have been been reported for a sample that was actually as low as .079 or as high as .089.  Consequently, when an .005 margin of error is applicable, an .084 test result cannot prove beyond a reasonable doubt that the test result was above .080.

 

Alcohol Absorbtion Curves

 

     When you drink an alcoholic beverage, the alcohol it contains takes time to be absorbed through the lining of the stomach, and into your bloodstream.  Only after this time consuming process occurs, does any of the alcohol begin to be respired out in your breath.  As time continues to pass, the alcohol that you consumed is metabolized, respired out and otherwise eliminated from your body, and your breath alcohol eventually decreases back to zero.  A visual representation of this process is called an alcohol absorbtion curve.

     Hawaii law prohibits you from driving with a certain amount of alcohol in either your blood or your breath.  It is entirely silent on alcohol in the stomach.  You can literally drive around town with a gallon of vodka in your stomach without breaking any law (NOTE: Don't try this at home!) The only law you would break is the law of common sense.  However, even that ridiculous amount of alcohol would not be illegal behind the wheel until it was absorbed into your blood, or was respired out in your breath.

 

     It possible to be driving with a breath alcohol level below the .08 limit, and to have your breath alcohol level increase during the period of time after your vehicle was stopped.  This can happen when alcohol that was in your stomach continues to be absorbed and respired after the vehicular stop occurred.

 

     The National Institute Of Medicine's abstract for a peer reviewed medical journal article entitled Absorption and peak blood alcohol concentration after drinking beer, wine, or spirits., Alcohol Clin Exp Res. 2014 May;38(5):1200-4 states:

 

Abstract

 

BACKGROUND:

Both the amount and the rate of absorption of ethanol (EtOH) from alcoholic beverages are key determinants of the peak blood alcohol concentration (BAC) and exposure of organs other than gut and liver. Previous studies suggest EtOH is absorbed more rapidly in the fasting than in the postprandial state. The concentration of EtOH and the type of beverage may determine gastric emptying/absorption of EtOH.

 

METHODS:

The pharmacokinetics of EtOH were measured in 15 healthy men after consumption of 0.5 g of EtOH/kg body weight. During this 3-session crossover study, subjects consumed in separate sessions, beer (5.1% v/v), white wine (12.5% v/v), or vodka/tonic (20% v/v) over 20 minutes following an overnight fast. BAC was measured by gas chromatography at multiple points after consumption.

 

RESULTS:

Peak BAC (Cmax ) was significantly higher (p < 0.001) after vodka/tonic (77.4 ± 17.0 mg/dl) than after wine (61.7 ± 10.8 mg/dl) or beer (50.3 ± 9.8 mg/dl) and was significantly higher (p < 0.001) after wine than beer. The time to Cmax occurred significantly earlier (p < 0.01) after vodka/tonic (36 ± 10 minutes) compared to wine (54 ± 14 minutes) or beer (62 ± 23 minutes). Six subjects exceeded a Cmax of 80 mg/dl after vodka/tonic, but none exceeded this limit after beer or wine. The area under the concentration-time curve (AUC) was significantly greater after drinking vodka/tonic (p < 0.001) than after wine or beer. Comparison of AUCs indicated the relative bioavailability of EtOH was lower after drinking beer.

 

CONCLUSIONS:

Findings indicate that BAC is higher after drinking vodka/tonic than beer or wine after fasting. A binge pattern is significantly more likely to result in BAC above 80 mg/dl after drinking vodka/tonic than beer or wine. Men drinking on an empty stomach should know BAC will vary depending on beverage type and the rate and amount of EtOH.

 

     This study showed that even when beer is consumed with an empty stomach the upswing of the alcohol absorbtion curve can continue for at least 23 minutes.  When your stomach is full of food, the upswing period can last even longer.  Consequently, it is sometimes possible for a driver to: (1) have a legal breath alcohol content at the time the vehicle was being driven; and (2) to produce a breath test result above the legal limit 30 minutes later at the police station.

 

Title 11 Chapter 114 Of

The Hawaii Administrative Rules

 

     HRS Section §321-161 states:

 

Chemical testing for alcohol concentration or drug content.

 

(a)  The department of health shall establish and administer a statewide program relating to chemical testing of alcohol concentrations or drug content for the purposes of chapters 286, 291, 291C, and 291E, with the consultation of the state director of transportation.  Under the program, appropriate procedures shall be established for specifying:

 

(1)  The qualifications of personnel who administer chemical tests used to determine alcohol concentrations or drug content;

(2)  The procedures for specimen selection, collection, handling, and analysis; and

(3)  The manner of reporting and tabulating the results.

 

(b)  The director of health may adopt rules pursuant to chapter 91 necessary for the purposes of this section. 

 

     The "rules" and "appropriate procedures" for breath alcohol testing that were adopted by Hawaii's State Director of Health, pursuant to HRS § 321-161 are codified in Title 11 Chapter 114 of the Hawaii Administrative Rules.

 

    Title 11 Chapter 114 rules that can be used when appropriate to block the admission of breath test evidence include:

 

1.     HAR § 11-114-6(b)(1) requiring that the "person to be tested shall not have ingested alcoholic beverages, eaten, smoked or vomited for at least fifteen minutes before the breath alcohol test."  

 

2.     HAR § 11-114-7 requiring periodic accuracy verification tests for breath alcohol testing instruments;

 

3.     HAR § 11-114-7(b)(5) requiring that "the result of the accuracy verification test shall be within the range of plus or minus 0.01, or plus or minus ten percent of the the targe value, whichever is greater"; and

 

4.     HAR § 11-114-7(b)(7) requiring that "each breath alcohol test shall have been preceded by an accuracy test which meets the criteria of section 11-114-7 by not more than thirty one days.  

 

Link To

Hawaii Administrative Rules 

Title 11 Chapter 114

Contact Mr. Mac Master immediately for a free telephone consultation

 

(808) 531-8080

 

fax: (808) 531-4044

 

send e-mail to Mr. Mac Master at

 

alohaleg@pixi.com

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