Maine DUI Defense Law Blog

Avoiding police manipulation of breath tests

Police manipulate breath testing devices by controlling the way people below into them. Usually, police officers tell a person taking a breath test to take a deep breath and to blow into the machine as long as possible. During the tests the officers will encourage this by telling the test subject to “blow, blow, blow” until the person runs out of breath. The result is a falsely high test.

The machines are designed to estimate blood-alcohol by measuring breath alcohol. To do this the machines must use certain assumptions about your temperature, blood particulate levels and several other factors.

By far the most important factor is temperature. Henry’s Law says that the concentration of a substance contained in the gas found in the headspace over a liquid is directly proportional to the temperature at the point of exchange. In breath testing terms this means that the warmer your lungs are, the more alcohol will be in your breath, regardless of the concentration of alcohol in your blood.

When you hold your breath before breathing into the breath test machine your lungs warm up. The amount of alcohol in your breath increases. Then, when you blow all of your breath into the machine, you blow the very warmest breath at the end, and that is what is tested. These procedures create a falsely high result.

The breath test machine (with a couple of exceptions where the machine measures breath temperature) assumes that your breath temperature is 34°C. That is about 92.8°F. When you hold your breath before blowing into the machine you can warm it up to 37°C (about 98.6°F) and if you have a fever it will go even higher.

Maine Breath Test AdviceFor every degree centigrade that your breath is over 34°C the breath test result increases somewhere between 6.5% and 8.5%. So if you hold your breath and the temperature goes up to 37°C you might increase the breath test result by 25.5%. This means that if your blood-alcohol level is .07% and you hold your breath, bringing your breath temperature up to 37°C, you will blow .08% or .09%. Although you’re really under the limit you will read as being over the limit.

There is a way to avoid this falsely high test result. This involves controlling your breath temperature and breathing.

The first thing you need to do is not let your breath temperature get too high. This means you should breathe deeply and quickly, in and out 3 or 4 times, before you blow. Don’t hold your breath. When you take that last breath don’t take a deep breath, just take a normal breath and blow normally – not as hard as you can. And then blow immediately into the machine without holding your breath. This will keep your breath temperature down around 34°C.

The second thing you need to do is control how much breath goes into the machine. The machine does not require that you breathe in all the breath possible. Most machines only require about 1.1 L of breath. The average person can blow 4 or 5 L of breath if they take a good, deep breath.

Remember that the breath at the end of your breathing cycle is warmer than the breath of the beginning. So once you start to blow, blow normally–not too hard–and blow for only 6 seconds. Count to 6, by 1000’s in your head. Then stop blowing. If you blow a steady stream into the machine you will have blown enough air.

The result should be anywhere from 25% to 50% less than it would be if you held your breath and blew as long and as hard as you can.

Warning: You need to be aware that if you refuse a breath test and you are convicted of DUI in Maine you will face harsh suspension penalties.

Penalties for Refusal

  • 1st refusal – 275-day driver’s license suspension
  • 2nd refusal within 10 years – 2 year driver’s license suspension
  • 3rd refusal within 10 years – 4 year driver’s license suspension
  • 4th refusal within 10 years -6 year driver’s license suspension

Driver under 21

  • 1st refusal – 18 month driver’s license suspension
  • 2nd refusal – 30 month driver’s license suspension

Marijuana can cost you your license

Even if you are not stoned, you can lose your license in Maine if you use marijuana. Maine law says that if there is probable cause to believe you are under the influence of some drug, and you show a positive test for a drug metabolite in your urine, your license will be suspended.

The problem with this law is threefold.

First, probable cause is a very low standard of proof. It isn’t even proof that something is more likely than not, it is a mere suspicion based on observed facts. How little proof is required? The case of State v. Webster, 2000 ME 115, the defendant made an illegal U-turn. When police stopped him he denied any recent drinking, but the officer smelled alcohol on his breath. The officer then gave Webster field sobriety tests which he PASSED. Despite passing the tests, Webster was arrested. His breath tested at a .10% alcohol.

Webster filed a motion to suppress the evidence for a lack of probable cause. The court denied the motion stating that the illegal (but not erratic) driving together with the smell of alcohol and Webster’s denial of recent drinking, was probable cause to arrest him. When he appealed the Maine Supreme Court said the arrest was OK because: “The probable cause standard for requiring a person to take a blood alcohol test [or to arrest them] has a very low threshold.”

When I tell lawyers in other states about this they simply do not believe me. I have to show them the case.

The second problem is that the law does not distinguish between active metabolites and inactive metabolites. This is a big problem for marijuana users in a medical marijuana state. The primary active chemical in marijuana is delta-9 THC. That chemical rapidly breaks down into chemicals that do not affect you – they are called inactive metabolites. Inactive metabolites can stay in your system for days or even weeks after using marijuana.

So if you are stopped by the police for a traffic violation such as speeding, and your clothes smell of marijuana, they will ask if you have been smoking. When you tell them not for several hours and you are okay, they can still arrest you – even if you pass their tests. Then they will get a urine sample and that will show the presence of marijuana metabolites. Your license will be suspended

The minimum suspension is 150 days. If you refuse the urine test the minimum suspension is 275 days, so refusing is not a good choice, either.

The third problem is the type of test – urine. Urine tests say nothing about what is in your system and affecting you. By definition things in urine have left your system. Urine is a history lesson. It can tell us that you used a drug in the past, but it can’t tell us if it is affecting you now.

If you live in Maine and think this is unfair you should contact your state legislator. Tell your legislator that 29-A MRSA sec.2453-A is a bad law. A better law would require a blood test that shows an active drug or active metabolite before a license can be suspended.

Breath test is a search, but so what?

When I last wrote I discussed whether a warrant was needed for a breath test. I argued that a warrant was needed based on previous Supreme Court cases. I was happy that one judge agreed with me.

Well, a couple of weeks ago the Supreme Court decided North Dakota v. Birchfeld. They held that a breath test was a search, but that a warrant wasn’t needed. The Court basically said a breath test is not particularly intrusive. They concluded it can be done when someone is arrested as a search incident to that arrest. Again, one judge – Justice Sotomayor – agreed with me, that a warrant should be required.

The Court reaffirmed that a warrant is needed for a blood test. They also held that a state cannot make it a crime to refuse a blood test without a warrant because that would penalize people for asserting Fourth Amendment rights when the person insisted on a warrant. Although urine tests were not at issue, they will probably be treated the same way as blood tests, and a warrant will be required. I still think these rules should apply to breath tests, too.

The Court held that the state could still criminalize a breath test refusal because the person has no right to refuse a breath test.

State laws that impose criminal penalties (primarily jail) for refusing breath tests, and civil sanctions(such as license suspension) for refusing breath, blood or urine tests, are still lawful.

One good thing to come out of this case is Justice Sotomayor’s position on the need for warrants. Her dissent, together with her position in a few other recent cases, suggests she will be one of the champions of the Fourth Amendment and our collective right to be free from oppressive government searches.

A Breath Test is a Search


In 2013 the Supreme Court held in Missouri v. McNeely, 133 S.Ct. 1552 (2013), that a blood draw is a search requiring a warrant or a warrant exception. Since then I’ve been arguing that the same logic applies to a breath test. I based this argument on Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602 (1989) that held a breath test is a search. Skinner did not address the warrant issue because of special circumstances associated with regulation of the railway industry. Up until now I’ve had little success. Judges are reluctant to change decades of practice, even if that practice was unconstitutional. Last week I finally won a round in this fight.

In last weeks case my client was given field tests and then asked to voluntarily come down and take a breath test. He asked the natural question, “What if I don’t want to?” The officer told him that he would be arrested and taken to jail if he didn’t agree to take the test. If he agreed to take the test the officer promised to bring him home and not to jail, regardless of the test result. I moved to suppress the breath test for a lack of a warrant or warrant exception.

In a motion alleging a warrantless search, the state has the burden of proving there was a valid warrant exception. Recognized warrant exceptions are search incident to arrest, consent, exigent circumstances and a few others. The Supreme Court, in Arizona v. Gant, 129 S.Ct. 1710 (2009), limited the search incident to arrest exception to the extent that it cannot apply to breath or blood tests. Exigent circumstances are situations where it is extremely impractical for the officer to obtain a warrant in time to conduct a meaningful search, or some sort of emergency. In my case the state did not argue exigent circumstances. It is unlikely that any such argument would have been successful. Instead they focused on consent.

The state made two consent arguments. First they argued that the Implied Consent law was actual consent. Second, they argued that he actually consented to voluntarily take the breath test.

Every state has an Implied Consent law. That law says you will consent to a test or bad things will happen. Usually the bad things are license suspensions and telling a judge or jury that you refused a test when you take the case to trial. In some states it is a crime to refuse a test. The state argued that this was automatic consent that could not be revoked. The judge in my case did not agree. She found that consent to search for Fourth Amendment purposes must be actual and voluntary.

The state’s actual consent argument was in two parts. First, the cop denied that he told my client he would go to jail if he refused to volunteer to take the test. Fortunately, we had a very credible witness who heard the whole thing. That witness was clear about what she heard, and equally important, she was clear about what she did and did not remember. The officer was not so credible. His story has some inconsistencies, and things he did admit saying suggested there was talk about going to jail that he was denying. The judge believed the civilian witness and not the officer.

This left only whether my client actually consented to take the test. The judge held that a threat of jail was coercion that made the consent involuntary. She suppressed the breath test.

While this is a good start, we are not out of the woods in all cases. Many judges are holding that when an officer reads a person the Implied Consent consequences of refusing, that this is not coercion. Their logic is that the officer is simply advising the person of the legal consequences of refusing, and not engaging in threats. The problem with this logic is that if relies on the fantasy that the police and the lawmakers are unrelated. If the legislature passes a law that makes threats for asserting one’s constitutional rights, it is a threat by the government. Period. It doesn’t matter if the threat is communicated by a police officer or a state representative, it is still government punishment for asserting a constitutional right. It is coercion by the government.

Drinking one drink per hour and driving means trouble – usually a DUI

As a DUI defense lawyer I talk to people every month who were arrested for DUI. An alarming number of those people are truly surprised at their blood-alcohol level. Many tell me they “paced themselves” to one drink per hour. For most people this pace is a recipe for disaster.

A Brief History of Alcohol Calculations.

Scientists have studied alcohol for many years. In the early years of the 20th century a Swedish physician, Dr. Widmark, did extensive research. Based on his research he devised a formula for calculating blood-alcohol levels based on the amount of alcohol consumed, the person’s weight, their gender, and the amount of time that passed since first drinking. This formula then predicts a range for the person’s blood-alcohol level or concentration (BAC.) This is the formula that is used in virtually all smart phone calculators or the “drink wheel/calculators” sold. It is also the basis for the claim that one drink per hour will protect you from driving under the influence.

The formula was undoubtedly accurate for Widmark’s specific test subjects in the 1920’s and 1930’s However, variations in body composition, differences between laboratory and real world drinking patterns, and variations in how we measure drinks make calculations based solely Widmark’s formula unreliable.

Widmark’s Subjects were Skinny Kids.

The amount of water in the body is a big factor. The more water you have in your body, the more the alcohol is diluted. Widmark’s test subjects were students. This meant that they were younger than the average population. They were also Europeans living in the 1920’s and 1930’s. On average they were much thinner than today’s Americans. Whether you attribute it to fast food or other causes, Americans (even college students) are fatter than Europeans living 80 or 90 years ago. And the older we get, the fatter we are likely to be. Since fat tissue has less water than muscle, we have proportionately less water than Widmark’s kids. That means the same amount of alcohol will be diluted less and will give us a higher BAC.

For women this is more of a problem. Women generally have proportionately less muscle than men, so they have a higher fat proportion. They generally weigh less than men for a given height. Women have even less water per pound than most men. So the same amount of alcohol gives women higher BAC’s.

Widmark Drinking Sessions Were Shorter and Steadier

When graphed Widmark’s drinking sessions generated nice smooth drinking curves. The graphs of the BAC’s went up smoothly, plateaued nicely and then dropped off smoothly. This was because his subjects usually got their drinks all at one time. That way the body would begin absorbing and continue to do so until it was all in the system. Modern social drinking rarely involves drinking all of your drinks at the start of the night. We drink a drink and order another. It takes time. The result is a series of absorption events, not one smooth curve. Technically, the Widmark formula and the smart phone calculators can accommodate this pattern, but it requires us to know the exact time each drink is consumed. Imagine being at a bar or the Christmas party. How likely is that sort of timekeeping? Every variation makes the calculations less reliable.

Widmark Knew Exactly How Much They Drank

Widmark carefully measured the number of drinks his subjects drank. He knew the amount of alcohol to a small fraction of an ounce And his idea of a “drink” was different. For Widmark, a drink is 12 ounces of 5% beer, 1-1/4 ounces of 80 proof (40%) liquor or five ounces of 12% wine. In most cases, the drinks we get do not match that formulation. While canned or bottled beers often come in 12 ounce portions, the alcohol content can vary considerably. Restaurants almost never pour a 5 ounce glass of wine – they pour four to the bottle because they come out evenly. That is a bit more than six ounces of wine per drink. And again the alcohol content is not always 12%. If you are drinking mixed drinks, do you know exactly how much alcohol the bartender pours? If you mix them yourself are you measuring? Probably not. So a drink for Widmark purposes isn’t always a true drink. When you are measuring alcohol in fractions of an ounce, a half an ounce here or there can really throw off the calculations.

So don’t rely on the one-drink-per-hour rule. For most people having one drink every hour and then driving will get you arrested for DUI.

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