Breath test science:how California courts ignore it

February 15, 2016

breath testCalifornia Supreme Court recently eliminated several important breath test defenses for DUI cases that drunk driving attorneys in Los Angeles used to successfully defend DUI cases in the Superior Court.

PARTITION RATIOS

According to the Supreme Court of California’s decision in People v. Vangelder, unreliability of breath sample can not always be argued to the jury.  Terry Vangelder was prosecuted for a DUI when his breath test came back as .08 percent alcohol after he was pulled over for speeding.   At trial, his defense tried to introduce testimony from Dr. Hastala who testified that breathalyzers don’t accurately show the level of alcohol in blood because recent scientific research shows that ratio of alcohol in air in lungs is not always the same as ratio of alcohol in blood.  Various factors influence the ratio and therefore breathalyzers are inaccurate.  The California Supreme court held that because legislature assumed breathalyzers are scientifically accurate, the defendant can’t challenge that even by using scientific research!  This is an absolutely incredible decision that contradicts scientific findings and ignores the “search for truth”.

Under California Vehicle Code section 23610, a breath results are based on a ratio of either .08 gram of alcohol per 100 ml of blood or .08 grams of alcohol per 210 litter of breath.  Of course, no person can breath out 210 litters and most breathalyzers need about 1.5 litters of breath.  Therefore, the breathalyzer multiplies the amount of alcohol it receives in a breath sample by 140 to get to 210 litters.  If that amount of alcohol is more then .08 grams, you are over the limit.  But, even VC 23610 permits introduction of evidence disputing that a person is over the limit.  In subsection (c), VC 23610 allows introduction of evidence disputing impairment.  But, California Supreme Court decided not to allow defense to challenge any breathalyzer’s results.

Breath test are inherently inaccurate as a measure of how much alcohol person has in his blood.  The reason for this inaccuracy are that breathalyzers are manufactured on an assumption that amount of alcohol in air in the lungs is directly related to amount of alcohol in blood.  This assumption is based on research from the 1950s.  Recent researched showed that the ratio of alcohol in lungs’ air to alcohol in blood is not constant.  In fact, speed of breathing, depth of breathing, body temperature, breath temperature, ratio of red blood cell to total blood volume, the fact that women have smaller lungs and therefore higher breath test relative to blood and medical conditions, can influence the breath to blood ratio and therefore it will change the true blood alcohol level (as oppose to breath alcohol level which is an approximation of the blood alcohol level).  In addition, mucus that covers the entire distance the air travel to lungs, absorbs alcohol and contributes to possibly increased alcohol level in a breath test.  Yet, according to the Supreme Court, this deficiencies in design of breathalyzers must be ignored despite science proving that speed of breathing, depth of breathing, body temperature, breath temperature, ratio of red blood cell to total blood volume, and sex of person can cause the ratio to fluctuate (and therefore misrepresent the breath test blood alcohol level).

To its credit, the Supreme Court permitted arguments showing presence of mouth alcohol or arguments showing  that breathalyzer was not properly used.   Los Angeles DUI attorney can still cleverly argue around Vangelder’s holding by pointing out for example that proper administration of breathalyzer test need to be done in the post-absorptive phase.  Thus, failure to calculate

if the person was in post-absorptive phase when administering breathalyzer to do a breath test can help DUI defendants in Los Angeles.

FACTS OF PEOPLE V. VANGELDER 58 CAL 4th 1  

Defendant Terry Vangelder was tried in San Diego for a DUI.  At the trial level the jury could not reach a verdict on Cal VC 23152(a) charge (hung aka deadlocked).  However, the jury convicted Terry Vangelder of Cal VC 23152(b) charge.  The VC 23152(b) charge was based on breath sample results that Terry Vangelder gave to the police upon request.  The results were  another count based on PAS (preliminary alcohol screening) and EC/IR (electrochromatograph/infrared) results that showed his blood alcohol level to be equal or above .08 percent alcohol.

Terry Vangelder appealed and the court of appeals reversed the trial court decision.  However, the Supreme Court of California reversed the court of Appeal ruling and disallowed for the defense to challenge the partition ration so that now, the 2100 litters is held reliable despite science disputing it.

This decision is very damaging to previously permissible arguments that breath tests are inaccurate because the conversion ratio used are slightly different for each person.  Some person’s breath to alcohol will convert at 1:2100, for others it will be 1:2150 for yet another it would be 1:2050.  This difference is especially important for low blood alcohol cases, where such difference can put a defendant below limit of .08 percent

If you are charged with DUI in Los Angeles, please contact our office to talk directly to Los Angeles DUI lawyer.  We can provide quality representation at affordable price.  You can call our office (818) 921 7744 .

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