Breath Test Challenges
In Tennessee, the state only gives one chemical test. Yes, you are correct that does not follow the basic scientific rules we learned in high school. Why does the state not give two tests to check the reliability of the machine? One test is close enough for government work.
Neither the state nor the manufacture of the machine will allow anyone other than law enforcement to test the machine for its accuracy and reliability. For a procedure to be accepted as accurate and reliable in the scientific community, it must be open and available for the scientific community to test and retest the procedure. This is not permitted with the ECIR II machine. What are they hiding?
The number produced by the machine comes from a mathematical formula in the machine. The manufacturer will not divulge this formula claiming it is "proprietary". Again, what are they hiding?
A sample of your breath could be saved for retesting for about $2.00 but the state chooses not to save it. Why don't they save a sample when your freedom is on the line?
A few of the many other issues that can affect the accuracy of a breath test are:
- Body temperature
- Breath temperature
- Power surges
- Radio frequency
- Mouth contaminates (smokeless tobacco, dentures, denture adhesive, mists, lip balm, etc.)
- Physical problems
- Exposure to certain chemicals
- Diabetes
- Esophageal hernia
- Heartburn
- Liver disease
- Certain diets
- Certain medications
- Machine malfunction
- Improper maintenance
- Improper training
Female DUI Issues
Men account for an overwhelming majority of those arrested for DUI. However, the percentage of females arrested has been increasing at a rapid pace. There are several factors that account for the growing number of females accused of DUI. Law Enforcement officer's attitudes toward women have changed over the years. It was once more likely for an officer to ensure that a female drunk driver got home safely rather than put her in jail. There is no doubt that the changing role of women in American society has played its part as well. More women in the workforce and there are more female professionals. These changing lifestyles of women place them in positions that are more conducive to a DUI arrest.
While the above issues are factors, the most pressing issue is test bias. Studies have shown that women tend to score higher on breath testing machines. This is because the machines are set for an average male's lung capacity. This is inherently unfair to women and should be addressed. The average woman's body has a higher fat to muscle ratio than does a man. This affects the absorption of alcohol because the average male's body is 68% water while the average female's body is only 55% water. Water and alcohol mix and quickly distribute throughout the body; thus a male tends to dilute alcohol more quickly than does a female.
Alcohol also affects women in differently than men due to the fact that women metabolize alcohol more slowly. Women have less of the ADH enzyme. This causes a larger proportion of the ingested alcohol to reach the blood system prior to being converted to acetate. Women experience fluctuation in hormone levels during their menstrual cycle that may affect the rate of alcohol metabolism. This makes a woman more susceptible to elevated blood alcohol concentrations at different points in the cycle. They will experience their highest BAC during their premenstrual state. Since body temperature is also elevated at this time, and during menopause, a women's true blood alcohol level may be overstated because breath testing in Tennessee assumes that the temperature of expired breath is 34 degree Celsius. Every degree above "average" will result in a 6.9% false high reading. In addition, there is also some evidence that a woman taking birth control pills will produce higher BAC levels.
Thus a woman of the same size drinking the same amount as a man will often show a higher BAC reading. Men and women's bodies are not the same but the machine used by the police assumes they are.
Challenging Chemical Test Evidence
The defense of a DUI case requires knowledge about physics, chemistry, biology, anatomy, toxicology, pharmacology and how these scientific disciplines interrelate. People's bodies are different. A person's body reacts differently to different stimuli at different times. Chemical testing for Blood or breath alcohol levels assumes every person is the same. The tests assume every person tested is a:
Normal, healthy, and average person
There are countless medical conditions which can affect the accuracy of chemical testing and the appropriateness of field sobriety test. The following are examples:
- Disease of the lungs
- Periodontal (gum disease)
- Dentures
- Migraine headaches
- Faulty bridge work
- Diabetes
- Gastric reflux disease (GERD)
- Flu
- Eye disease
- Fever
- Pre-menstrual or menstrual
- Heart disease
- Accidents with airbags
- Inner ear conditions
- Attention deficit disorder
- Pre-existing injuries to back, legs, etc.
Tennessee DUI defense lawyer Rob McKinney understands how prosecutors approach minor DUI cases. He understands the issues involved in building cases against those charged as well as how to work with the court and the prosecution in avoiding maximum sentences.
Contact Us For A Free Consultation
For a free consultation with a knowledgeable DUI defense attorney in Nashville, call May & McKinney, PLLC at (615) 265-6383 or contact us online.
