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Attacking breath-test-results-JJOHNSEBASTIAN ATTORNEY
 

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J JOHN SEBASTIAN ATTORNEY

J JOHN SEBASTIAN ATTORNEY

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    Attacking breath-test-results-JJOHNSEBASTIAN ATTORNEY Attacking breath-test-results-JJOHNSEBASTIAN ATTORNEY Document Transcript

    • © 2013 James Publishing 800-440-4780 1
    • DETAILED CONTENTS I. Strategies for Cross-Examining the State’s Expert §1:01 Who Is the State’s Expert? §1:02 Six Possible Approaches §1:03 The “Short and Simple” Approach §1:04 Breath Testing Is Quick and Cheap §1:05 Point Out Bias §1:06 Machines Make Mistakes and Need Repairs §1:07 You Can’t Tell This Jury What My Client’s BrAC Was When He Was Driving §1:08 Marry the Technical Supervisor to the Experts §1:09 Form: Letter Notifying Technical Supervisor of Intention to Reference Materials II. Exposing the Weaknesses Inherent in the Intoxilyzer A. Preliminary Considerations §2:01 Choose Your Best Two or Three Issues §2:02 Eight Potential Attacks B. Breath Temperature §2:03 Why It Matters §2:04 Breath Temperature Cross-Examination Questions for the Technical Supervisor §2:05 Breath Temperature Scientific Articles C. GERD §2:06 What Is GERD §2:07 GERD Defense Direct Examination Questions for Your Expert §2:08 GERD Scientific Articles D. Breath Sample Not Preserved 2
    • §2:09 The Toxtrap §2:10 Cross-Examination Questions for Technical Supervisor §2:11 Articles Regarding the Trapping and Retesting of Breath Samples E. Mouth Alcohol and the Slope Detector §2:12 Function of Slope Detector §2:13 Cross-Examination Questions for Technical Supervisor §2:14 Scientific Articles §2:15 Jury Instructions: No 15 Minute Observation Period F. Tolerance §2:16 Built in Error Range §2:17 Cross-Examination Questions for Technical Supervisor G. Disconnect Defense §2:18 Arguing the Defense §2:19 Cross-Examination Questions for Technical Supervisor H. Not Specific for Alcohol/Interferents §2:20 The Problem of Interferents §2:21 Cross Examination Questions for Technical Supervisor §2:22 Scientific Articles About Interferents I. Breathing Technique and Lung Size §2:23 Breathing: What to Look For §2:24 Cross-Examination Questions for Technical Supervisor §2:25 Lung Size §2:26 Scientific Articles on Breathing, Breath Alcohol, and Lung Size I. Strategies for Cross-Examining the State’s Expert §1:01 Who Is the State’s Expert? The Technical Supervisor is the State’s “expert” who maintains the breath testing equipment and trains the operators in your area. These are typically individuals with a bachelor’s degree who have been trained at the Borkenstein Course at Indiana University (see http://www.borkensteincourse.org/). This is a week-long course 3
    • that at one time allowed defense attorneys to attend. However, the rules have changed and the defense bar is no longer invited. §1:02 Six Possible Approaches There is no single right way to deal with the Technical Supervisor in cross examination. Some very successful DWI attorneys ask very few questions while others spend a great deal of time on cross examination. [See §1:03.] Each attorney must find what works best for him or her. Some additional approaches include:  Emphasize the breath test does not measure the client’s BrAC at the time of driving. [See §1:07.]  Suggest breath testing is a cheaper, but less accurate alternative to blood testing. [See §1:04.]  Point out the Technical Supervisor’s bias. [See §1:05.]  Point out lack of repair, maintenance, and cleaning of the Intoxilyzer. [See §1:06.]  Marry the Technical Supervisor to expert opinion on the weaknesses of breath testing. [See §1:08.] One factor to consider in deciding how to proceed with the Technical Supervisor is whether or not you intend to call a defense expert. If you have your own expert, you may opt for a fairly short cross where you make certain points with the Technical Supervisor that you intend to emphasize and “flesh out” with your own witness. If no defense expert is going to be called, then a more thorough cross examination of the Technical Supervisor may be the way to go. The following sections deal with general questioning of the Technical Supervisor without going too far into the science of breath testing. Often attorneys are not comfortable with the science and want to avoid going toe-to-toe with the State’s expert. You can do a very effective job of discrediting the breath test result using the next few sections and many very successful DWI attorneys limit their cross to what follows. PRACTICE TIP: A “machine,” not an “instrument” The use of words can be powerful. Technical Supervisors are taught to continually refer to the 5000EN as an “instrument” as opposed to “machine”. Dictionaries list “machine” and “instrument” as synonyms. Technical Supervisors are taught to use the word “instrument” because it tends to give it more credibility whereas “machine” implies something that might break. Don’t fall into the trap of calling this an instrument. Always call it what it is – a machine. Keep in mind that Technical Supervisors are professional witnesses. They may only have a bachelor’s degree and a week at Borkenstein, but they testify often and have been cross examined countless times. You must word your questions very carefully in order to obtain the response you are looking for. PRACTICE TIP: Know your Technical Supervisor I have found that Technical Supervisors tend to fall into one of two categories. Some view themselves as scientists. They are generally honest with their responses and will agree with you if you ask the right questions. Others are there for the sole purpose of convicting your client and will go so far as to contradict testimony they have given in previous trials if it will 4
    • help obtain a conviction in the case at hand. Knowing who you are up against may help you decide what style of cross is going to be most effective. If you are trying a breath test case in a jurisdiction where you do not know the Technical Supervisors and their reputations, contact one of the top DWI lawyers in the area and ask. §1:03 The “Short and Simple” Approach This approach limits the cross examination of the Technical Supervisor to no more than five questions. The idea is to avoid arguing science with a scientist, especially if you don’t have the background to do so. In breath test trials, attorney Jimmy Angelino often limits his cross examination to the following: Q: Isn’t it true that the breath testing program has one major flaw? Q: The flaw is that you cannot tell this jury what my client’s BrAC was at the time he was driving, right? Q: My client could have been below .08, at .08 or above .08 when he was driving his car, correct? Q: If you do a mathematical calculation to try and determine what his BrAC was at the time he was driving, it would amount to nothing more than a guess, correct? (Note: The Tech Sup may argue that it’s an “educated guess,” but point out that it’s still a guess.) §1:04 Breath Testing Is Quick and Cheap The idea here is to point out that breath testing is quick and cheap but lacks the accuracy of blood testing. This sets up a closing argument that your client was not given the option of the more accurate test due to cost. This is an approach Dallas attorney Gary Redman often uses with great success. The following is reprinted with his permission: Q: A breath test is not the only way to test a person’s alcohol level, is it? Q: You could test a person’s urine? Q: You could have drawn blood? Q: A qualified technician would have to draw the blood? Q: Or a nurse? Q: The blood would then be sent to a laboratory? Q: Another qualified person would test the blood? Q: This is a very accurate way of testing a person’s blood alcohol concentration? Q: It is the ONLY way to accurately test a person’s BLOOD alcohol concentration? Q: A blood test is not cheap, is it? Q: You have to wait for a blood test result, right? Q: It could take weeks to get the result back? Q: It’s not quick, is it? Q: Another way to test a person’s alcohol level is to use a breath test? Q: With a breath test, you get a result right then? Q: A subject blows into the machine? Q: The machine gives a result? Q: This is a lot quicker than a blood test? 5
    • Q: With a breath test, you get the results immediately? Q: You don’t have to wait weeks? Q: Which test is the cheapest to administer? Q: And breath is by far the quickest to administer, correct? Q: The machine that analyzes blood costs about $100,000? Q: The cost of a breath test machine is about $6000? PRACTICE TIP: Don’t ask which is more accurate Do not ask if the Technical Supervisor thinks blood is a more accurate way to test for a person’s alcohol concentration than a breath test. Most will say no. However, your JURORS will likely think that blood is more accurate. Save this argument for closing. §1:05 Point Out Bias Many successful DWI lawyers believe it is important to point out the bias of the State’s “expert”. The State will attempt to make the witness look like an unbiased scientist. It is important to point out who the Technical Supervisor is and why she is there. Also, the Technical Supervisors are supposed to be the “supervisors” of the operators. Often, they have never met them and have never observed them performing a breath test. If the Tech Sup admits that she does not know the Operator and has never seen him perform a test, point out in closing arguments the absurdity of having a “supervisor” who has never met you or evaluated your work. Q: Your job duties include testifying for the State in court, correct? Q: Isn’t it true that you have testified hundreds of times? Q: Your salary is paid by ________ County? Q: Have you reviewed the police report in this case? Q: Have you watched the video? Q: Part of your responsibility is to supervise Operator _________? Q: You have the ability to suspend or recommend his certificate be revoked if he’s not performing tests according to the regulations? Q: Have you ever met Operator _______? Q: Do you know how many tests he has performed? Q: Have you ever personally observed him performing a breath test? §1:06 Machines Make Mistakes and Need Repairs Juries understand that machines break and need repairs. Pointing out the lack of routine repair or simple cleaning of the machine in your case is a simple way to cast doubt on the accuracy of the Intoxilyzer. Technical Supervisors often do not bring the repair or cleaning records of the machine in question to court with them and cannot tell you when the light source was last changed or whether the machine has ever been cleaned. The records they bring are typically the maintenance records which simply list on-site inspections and solution changes. Q: Have there been instances when the machine printed out a test result and it was later determined to be invalid? 6
    • Q: You perform what are called “modem checks” where you call the machine and perform a series of diagnostic tests over the phone, correct? Q: Have you had instances where the modem check indicated that the machine was fine but you later discovered that it had a problem? Q: That source lamp can collect dust? Q: When was the last time the source lamp was cleaned? Q: When was the last time the source lamp was replaced? Q: The filter wheel is supposed to turn at a speed of 2200 to 2300 revolutions per minute? Q: When was the last time the speed had to be adjusted? Q: When was the last time the filter wheel was cleaned? Q: Has the filter wheel ever been replaced? Q: What about the sample chamber, has it ever been cleaned out? Q: When was the last time the machine was brought in and re-calibrated? PRACTICE TIP: Make open records request Send an open records request to your Technical Supervisor requesting copies of any letters and their associated test records that have been sent to the DA’s Office concerning machines that have been found to be malfunctioning or test results they have refused to sponsor for any other reason. Specify a particular time period (i.e. the past 3 years). Sometimes a machine is found to be malfunctioning though it was producing “valid” test records. We had one in the Dallas/Collin County area in 2006 where a subject blew a .20 and a test record was produced but the machine was found to be broken. The Technical Supervisors were unable to describe how long the machine had been broken or how many other subjects had blown into it and had those test results used against them in court. Another letter that may be sent relates to a violation of the 15 minute observation period. If the Technical Supervisors are made aware of a violation, they may send a letter to the DA refusing to sponsor a particular test result. I have copies of several of these letters in case the 15 minute period is called into question during the trial and the Technical Supervisor tries to downplay its importance. Q: Have you ever discovered that a machine was broken and sent a letter to the DA’s office indicating that you could not vouch for any test results on that machine? Q: So this was a situation where the modem check of the machine said it was working fine, the prior on-site inspection indicated that it was working fine, the machine accepted two breath samples and printed out a breath slip with results on it, but you later discovered that the machine was malfunctioning? Q: In fact, that machine might have been having a problem for a while before you caught it? Q: How long? Three months? Six months? Q: How many other people had blown into that broken machine? 7
    • §1:07 You Can’t Tell This Jury What My Client’s BrAC Was When He Was Driving Remember that the MAIN POINT of any effective cross examination of a Technical Supervisor is HE CANNOT TELL THE JURY WHAT YOUR CLIENT’S BREATH ALCOHOL CONCENTRATION WAS WHEN THE CLIENT WAS DRIVING THE CAR. He can only speculate. Q: As you sit here today, isn’t it true that you cannot tell this Jury with any scientific certainty what my client’s breath alcohol content was at the time he was driving? Q: Any attempt to do so would involve speculation, correct? Q: At the time he was driving, my client’s breath alcohol content could have been lower than what was reported on the breath test slip? §1:08 Marry the Technical Supervisor to the Experts One approach to exposing the problems with breath testing is to use articles published by recognized by experts in the field. PRACTICE TIP: Notify supervisor of intention to reference scientific materials When questioning the state’s expert (Technical Supervisors in Texas) about a particular aspect of a case, you will find that they take a “see no evil, hear no evil” approach to their chosen area of “expertise”. In other words, when asked about a particular study or opinion, technical supervisors will often deny that they have read it or know anything about it. As a result, I give notice to the technical supervisor of my intention to reference certain materials during cross examination. Where possible, I try to focus on research done by scientists who teach at the Borkenstein school. (To browse through the faculty documents for the course, go to http://www.borkensteincourse.org/faculty%20documents/. ) This should prevent the technical supervisor from claiming that he or she does not know anything about a particular issue. You will need to set up the questioning in this way: Q: Isn’t it true that you attended a training program called the Borkenstein course prior to beginning work as a technical supervisor? Q: This is a week long course in which you are trained how to be a technical supervisor, correct? Q: The faculty of this program consists of well-known alcohol researchers including Kurt Dubowski, A.W. Jones and Rod Gullberg, correct? Q: And you would agree that these three are authorities in their field with a lifetime of research and writing to their credit? Q: And you would agree that each of them is likely to know a great deal more about breath testing than you, right? Q: You certainly would not place yourself and your limited education in this area on the same level as any of those three, would you? Q: Did you receive the articles I mailed to you prior to this trial? Q: Were these articles unfamiliar to you or had you read them before? 8
    • Q: Are you familiar with a book entitled Garriott’s Medicolegal Aspects of Alcohol? Q: Would you agree that this book is considered to be a learned treatise in the area of alcohol toxicology? The idea here is to pin the technical supervisor down on who is an authority in the area of breath testing and to “marry him” to Gariott’s book and the articles you intend to use. Do this at the very beginning so the witness can’t backtrack later. As you question the Technical Supervisor about specific issues, if he misstates a scientific principle, you will be able to call him on it by pointing out what the real scientists have had to say on the subject and essentially asking the Technical Supervisor if he thinks he knows more than Dubowski or Jones. PRACTICE TIP: Don’t forget the hearsay exception for learned treatises To the extent called to the attention of an expert witness on cross-examination or relied on by the expert in direct examination, statements contained in learned treatises, periodicals, or pamphlets on a subject of medicine or other science are admissible if established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. If the Technical Supervisor recognizes one of the articles you are using as a reliable authority, offer a copy as a learned treatise and then ask to read pertinent sections to the jury. §1:09 Form: Letter Notifying Technical Supervisor of Intention to Reference Materials DATE JOE BLOW Via Facsimile (999) 999-9999 Technical Supervisor 1111 Miller Lite Lane Happy, TX 99999 Re: State v. Jack Daniels Dear Mr. Blow: It is my understanding that the State intends to call you as an expert witness in the case referenced above. Please note that I may reference the following articles and publications during my cross examination. “Physiological Aspects of Breath Alcohol Measurement,” A.W. Jones, Journal: Alcohol, Drugs and Driving, Vol. 6, April-June 1990, pp 1-25. “Breath Temperature: An Alabama Perspective,” Dale A. Carpenter, Ph.D and James M. Buttram, Ph.D, IACT Newsletter, Vol. 9, Number 2, July 1998. “A Critical Appraisal of 98.6F, the Upper Limit of the Normal Body Temperature, and Other Legacies of Carl Reinhold August Wunderlich,” Philip A. Mackowiak, MD, Steven S. Wasserman, PhD, Myron M. Levine, MD, JAMA, Sept. 23/30, 1992 –Vol 268, No 12. 9
    • “Effect of Hypothermia on Breath Alcohol Analysis,” Glyn R. Fox, Ph.D and John S. Hayward, Ph.D, Journal of Forensic Sciences, JFSCA, Vol. 32, No. 2, March 1987, pp. 320-325. “Effect of Hyperthermia on Breath Alcohol Analysis,” Glyn R. Fox, Ph.D and John S. Hayward, Ph.D, Journal of Forensic Sciences, JFSCA, Vol 34, No. 4, July 1989, pp. 836- 841. “Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects,” Dubowski, K., J. Stud. Alcohol, Supp. No. 10 (July 1985). Garriott, James C., Garriott’s Medicolegal Aspects of Alcohol, 5th ed., 2008. Please feel free to contact me if you have any questions. Sincerely, Jane Doe Attorney at Law II. Exposing the Weaknesses Inherent in the Intoxilyzer Testing A. Preliminary Considerations §2:01 Choose Your Best Two or Three Issues There are many ways to challenge the results of the Intoxilyzer 5000EN. The best strategy is to choose two or three issues but don’t throw the whole kitchen sink at the state’s expert. The jury will get lost and miss the important points if you throw too much against the wall. It is much easier when using a defense expert because you can rely on your expert to make the points you want to make. With or without an expert, keep it simple. Make your points and save the rest for closing. Following is a list of possible issues in a breath test case with suggested questions for how to raise them at trial and scientific articles on each issue that you can use during your examination. Not everything listed is going to apply in every case. Despite what the State wants juries to believe, we are not all the same. The “average person” is a myth. No one is average. I once heard a well known DWI defense attorney point out that the “average” person is Chinese, female, and dead. That usually gets a laugh during jury selection but is effective in making the jurors stop and think of the absurdity of lumping everyone into the same category the way the State does in DWI prosecution. 10
    • §2:02 Eight Potential Attacks  The Intoxilyzer does not adjust for differences in breath temperature. [See §§2:03-2:05.]  The test result is elevated because the client suffers from GERD. [See §§2:06-2:08.]  No breath sample was preserved for independent testing. [See §§2:09-2:11.]  The test result is elevated because of mouth alcohol. [See §§2:12-2:15.]  The Intoxilyzer has a margin of error of .02. [See §§2:16-2:17.]  The client’s behavior was inconsistent with the test result (the disconnect defense). [See §§2:18- 2:19.]  Interferents caused an elevated test result. [See §§2:20-2:22.]  The test result is elevated due to deep breathing or crying or small lung size. [See §§2:23-2:26.] B. Breath Temperature §2:03 Why It Matters Breath temperature is one area where the State clings to a one-size-fits-all mentality. The average temperature of exhaled human breath is 34 degrees Celsius (or 92 degrees Fahrenheit). This number is an AVERAGE. Your client might have had a breath temperature below, above or right at 34 degrees when he took the breath test. The Intoxilyzer 5000 is not capable of measuring the temperature of the breath sample. There is another machine on the market that does measure the breath sample and adjusts the breath alcohol score to reflect the subject’s actual breath temperature. It is made by a company called Draeger which, ironically, is located in Irving, Texas. Breath temperature is important because for every one degree Celsius rise over 34 degrees, the breath test result is overestimated by 6.5%. Thus, if the subject’s breath temperature is 37 degrees (which equates with core body temperature), the breath test result will be overestimated by 19.5%. Studies relating to the temperature of exhaled human breath have been conducted and the results have varied. A review of these studies finds a range of exhaled breath temperature from 31-36.7. The state of Alabama conducted a study to determine whether or not they would stick with the 5000 or switch to a different machine. Parallel testing was done with the Intoxilyzer 5000 and the Draeger Alcotest MK III. Ninety-three percent of the subjects tested had breath temperatures over 34 degrees. The breath temperature range was 32.4-36.2 with a mean of 34.9. [“Breath Temperature: An Alabama Perspective,” Dale A. Carpenter, Ph.D and James M. Buttram, Ph.D, IACT Newsletter, Vol. 9, Number 2, July 1998.] PRACTICE TIP: Temperature less useful for high test results The breath temperature issue is useful and relevant when dealing with a breath test result that is not particularly high. If you’re fighting a 0.17 breath test case, however, this may not be the issue you want to emphasize. §2:04 Breath Temperature Cross-Examination Questions for the Technical Supervisor 11
    • After the first breath sample is accepted and analyzed, it is purged using what is called an “air blank”. The air blank blows room air through the sample chamber to theoretically blow out the contents of the sample chamber and prepare it for another test. The next step in the sequence is to push air from above the reference solution (headspace gas) through the sample chamber and analyze it as if it were a sample of breath. The reference solution is a known solution of water and ethyl alcohol. It may be purchased commercially or prepared and tested using gas chromatography in a forensic laboratory to ensure that it represents 0.08 grams of ethyl alcohol per 210 liters (i.e. home brew). The solution is sealed in a glass jar, kept at a constant pressure and heated to 34 degrees. It is intended that the solution reach equilibrium in a classic example of Henry’s Law. The air or headspace gas above the liquid is what is tested. The reference solution must produce a test result of .08 plus or minus .01. The reference solution is kept at a constant 34 degrees plus or minus 0.2 (33.8 – 34.2C). [See Texas Breath Azlcohol Testing Program Operator Manual at pg. 57.] It is intended to simulate human breath. The Operators are taught to check the temperature of the solution before beginning a test sequence. It would seem logical that if the reference solution MUST BE 34 degrees, then so must the human breath. However, Technical Supervisors will vehemently deny that breath temperature is relevant. But they will admit that as the temperature of the reference solution rises, so does the result. Q: Breath test Operators are taught to check the temperature of the reference solution before beginning a test sequence, correct? Q: There is a thermometer attached to the reference solution? Q: The reference solution is supposed to be 34 degrees Celsius plus or minus .2? Q: The 34 degrees is equivalent to the average temperature of exhaled human breath? Q: As a person blows into the breath tube, there’s no thermometer that is measuring the temperature of the breath sample, is there? Q: Average body temperature is 37 degrees Celsius (or 98.6 degrees Farhenheit)? Q: It’s true that for every 1 degree the reference solution is above 34 degrees, the test result rises 6.5%? Q: So a known 0.08 simulator solution measured at 34 C will report out 0.095 if the temperature is raised to 37C, correct? Q: That’s a difference of 0.015, isn’t it? Q: If the temperature of the reference solution is 37 degrees, the test result will overstate the alcohol concentration by nearly 20%? PRACTICE TIP: See Jones article at §2:05. Make sure it is one that you send to the Technical Supervisor ahead of trial. Refer to it if she tries to use a different number. Some use 3% or 4% which is incorrect. §2:05 Breath Temperature Scientific Articles The following is a list of articles relative to breath temperature that you might find helpful in cross examination, especially if you mail copies to the Technical Supervisor prior to trial:  “Physiological Aspects of Breath Alcohol Measurement,” A.W. Jones, Journal: Alcohol, Drugs and Driving, Vol. 6, April-June 1990, pp 1-25. 12
    • From the article in the section “Body Temperature and Breath Temperature”: The temperature coefficient of ethanol solubility for solutions in water and biological media is 6.5% for each degree Celsius change in the equilibrium temperature [Harger et al., 1950a; Jones, 1983a.] The temperature in the lungs and upper airway is therefore an important respiratory parameter influencing the measured breath-alcohol concentration. The temperature of breath as it leaves the mouth rises from about 33.3 to 34.4 C as the volume of breath exhaled rises from 500 to 4500 ml (Jones. 1982a). Dubowski and Esary (1985) made extensive measurements of expired air temperature for a large number of healthy male and female subjects. . . . Mason and Dubowski (1974) suggest that breath-alcohol analyzers should be equipped with a fast-responding thermistor device and in this way monitor the temperature of expired breath and, if necessary, adjust the breath-alcohol reading to a constant temperature for all subjects. Factors that elevate body temperature such as a fever might be expected to cause a rise in breath temperature and therefore in the expired breath- alcohol concentrations. (emphasis added)  “A Critical Appraisal of 98.6F, the Upper Limit of the Normal Body Temperature, and Other Legacies of Carl Reinhold August Wunderlich,” Philip A. Mackowiak, MD, Steven S. Wasserman, PhD, Myron M. Levine, MD, JAMA, Sept. 23/30, 1992 –Vol 268, No 12. The conclusion of the study: In view of the data presented and the work of several other investigators, we believe that 37 deg C (98.6 deg F) should be abandoned as a concept having any particular significance for the normal body temperature. In the early morning, 37.2 deg C (98.9 deg F) and, overall, 37.7 deg C (99.9 deg F) should be regarded as the upper limits of the oral temperature of healthy adults 40 years of age or younger, and several of Wunderlich’s other cherished dictums should be revised.  “Effect of Hypothermia on Breath Alcohol Analysis,” Glyn R. Fox, Ph.D and John S. Hayward, Ph.D, Journal of Forensic Sciences, JFSCA, Vol. 32, No. 2, March 1987, pp. 320-325. From the study: We propose a simple, inexpensive, and effective method to overcome the problem of possible inaccuracy of breath-ethanol analysis as a result of abnormal body temperature. Combined with the existing procedures of having the test subject wait in a room of normal temperature for at least 15 minutes, and collecting breath samples only at the end of deep expirations, we recommend the following. During the last 2 to 3 minutes before breath sampling, oral temperature should be measured in the standard clinical manner using a nonbreakable thermometer. This would serve a dual purposed. First, it would screen for departures from normothermia. . . . Second, the recorded temperature would provide the opportunity for adjustment of the BrAC reading using a temperature correction factor. 13
    •  “Effect of Hyperthermia on Breath Alcohol Analysis,” Glyn R. Fox, Ph.D and John S. Hayward, Ph.D, Journal of Forensic Sciences, JFSCA, Vol 34, No. 4, July 1989, pp. 836-841. (Same recommendations as previous article.)  “Breath Temperature: An Alabama Perspective,” Dale A. Carpenter, Ph.D and James M. Buttram, Ph.D, IACT Newsletter, Vol. 9, Number 2, July 1998 (not peer reviewed but most Technical Supervisors are members of IACT and receive this newsletter). From the article: The origin of 34 deg C as the average breath temperature appears to predate modern literature indicating the average to be higher (34.4 -35.1). . . . Once a suspect’s breath temperature is known, the resultant BrAC can be corrected to 34 deg C. Utilization of this breath temperature correction feature in Alabama will follow the policy of giving arrestees every benefit of the doubt. C. GERD §2:06 What Is GERD Gastric esophageal reflux disease, or GERD, is a medical condition that can affect the reading on a breath test machine. It is characterized by heartburn and stomach pains and can be aggravated by drinking alcohol and/or eating spicy foods. Many people suffering from this condition self-medicate with over-the-counter medications such as Tums or Rolaids. However, those with severe symptoms are often under the care of a doctor and are taking prescribed medication such as Prilosec and Nexium. Many factors can contribute to this condition such as obesity, a hiatal hernia, stress, the stomach’s reaction to certain foods and so forth. A thorough intake questionnaire can help identify clients who may have a possible GERD defense to their high breath test score. If alcohol is still in a person’s stomach (i.e. the client was in the absorption phase) and gas erupts from the stomach into the mouth immediately prior to or during the breath test, a high reading may be obtained that does not reflect the BrAC in the lungs. Essentially, the reading adds both the lung BrAC and the additional stomach alcohol to obtain a false high reading. The State may argue that the slope detector on the 5000 will also screen for GERD. This is incorrect. The slope detector may work with a burp, but GERD is not a sudden eruption of stomach gas into the mouth. It is a constant flow of vapor that may not trigger the slope detector. From a tactical standpoint, you are much better off using this defense with a client who has a documented medical history of GERD prior to the DWI arrest. In one case I handled, medical records going back six years documented the condition and all of the testing that had been done. The client also had a hiatal hernia and was off her medication at the time of her arrest and breath test. §2:07 GERD Defense Direct Examination Questions for Your Expert The following are questions relating to a GERD defense once you have qualified your witness as an expert: 14
    • Q: Are you familiar with the Intoxilyzer 5000EN breath testing machine? Q: Can you explain to the jury how the machine works? Q: Are you aware of any problems associated with this machine? Q: Can you explain to the jury how the gastric system works? Q: If a person is drinking alcohol, how long does it remain in the stomach? Q: What role does the esophagus play in the gastric system? Q: How is the stomach connected to the esophagus? Q: What is the upper esophageal sphincter? Q: Can you explain to the jury what gastric esophageal reflux disease, commonly known as GERD, is? Q: How common is this condition? Q: Do you have an opinion as to whether or not GERD could have an impact on the results of a breath sample tested with the Intoxilyzer 5000EN? Q: Is a person suffering from GERD a good candidate for breath testing? Why? Q: Is it possible for a person suffering from GERD to produce a false high breath test result on the Intoxilyzer 5000EN? Q: What do you base your opinion on? Q: Have there been any peer-reviewed published studies or articles that support your opinion? Q: Does the Intoxilyzer 5000EN have the ability to distinguish between alcohol that is coming from the lungs and alcohol that is coming up as gas from the stomach? Q: What is a “slope detector”? Q: How does it work? Q: Is the slope detector able to recognize a false high that results from GERD? Why not? Q: The test in this case has two results that were obtained within minutes of each other. Does that rule out the possibility of a false high reading due to GERD? Why not? §2:08 GERD Scientific Articles  “Physiological Aspects of Breath Alcohol Measurement,” A.W. Jones, Journal: Alcohol, Drugs and Driving, Vol. 6, April-June 1990, pp 1-25. From the article under the heading “Regurgitation or Vomiting of Stomach Fluid Contents:” The breath-instrument operator should make careful observations of the subject and record any body movements or unusual behavior just prior to testing. Some people suffer from a complaint known as gastro-esophageal reflux and these individuals might spontaneously bring up stomach contents into the throat and mouth. Indeed, alcohol consumption itself might provoke this gastro-esophageal reflux action. . . .  “Breath Alcohol Analysis of a Subject with Gastric Regurgitation,” Wells, David and John Farrar, 11th International Conference on Alcohol, Drugs and Traffic Safety, 1989 (study included an individual with GERD who had abnormally high BAC readings that did not match either behavior or blood test results). 15
    •  “Breath Alcohol Analysis in One Subject with Gastroesophageal Reflux Disease,” Gullberg, RG, J. Forensic Sci. 2001:46(6):1498-1503. (Borkenstein instructor – Did not find BAC bias in this study but admits it is a potential problem that needs further study. Recommends operators be trained to look for signs of it and ask questions about the condition.) D. Breath Sample Not Preserved §2:09 The Toxtrap The Intoxilyzer 5000EN is not equipped to preserve a breath sample for later analysis. There is a device that allows a breath sample to be captured. It is called the “Toxtrap” and is manufactured by Toxtrap, Inc. The company’s website address is www.toxtrap.com. A Toxtrap is available for purchase for approximately $2 per tube, depending on how many you purchase. Toxtraps are glass tubes filled with silica gel that absorb the molecules in the breath sample and allow for later re-testing in a forensic lab to determine accuracy of the alcohol reading. The following description appears on the website: "A Breath Alcohol Capture and Preservation Tube" The "Toxtrap" is a highly specialized sample tube designed to meet the challenges of judicial acceptance. By simply attaching the "Toxtrap" to the exit port of a breathanalyzer, the tube will capture and preserve the alcohol content of the breath sample to be analyzed at a later date. The primary purpose of the Toxtrap Tube is to capture and retain a physical sample of the breath. It can be beneficial in determining or verifying accuracy of the test. It can also be used to validate the accuracy of the testing instrument or determine if an interfering substance was present during the sample collection. New Hampshire requires that all breath samples be preserved and uses Toxtraps with their Intoxilyzers. New Hampshire attorneys may request retesting of the breath sample in a forensic laboratory using gas chromatography, the same method used to test whole blood samples. §2:10 Cross-Examination Questions for Technical Supervisor You may want to question your Technical Supervisor about this issue so the jury understands that a process exists by which a DWI suspect could have her breath sample preserved and later retested in a forensic lab to verify the results of the Intoxilyzer 5000EN. However, Texas has never opted to spend the money to purchase these tubes. Q: It’s true that the breath sample is not preserved? Q: The Intoxilyzer 5000 is capable of preserving a breath sample for later testing, correct? Q: Are you familiar with a Toxtrap tube that can be fitted onto the Intoxilyzer and will actually capture and preserve a breath sample in silica so that it could later be re-tested on more sophisticated equipment? Q: Your machine does not use the Toxtrap, correct? 16
    • Q: The breath sample is simply blown out of the machine and into the air, correct? Q: Toxtraps only cost around $2? Less if you buy them in bulk? Q: If a breath sample is preserved in silica, it could then be tested using a gas chromatograph which is the same type of testing method used in a forensic lab to test blood, correct? Q: Are you familiar with the state of New Hampshire’s requirement that all breath samples be preserved for purposes of retesting? Note: Some Tech Sups will deny any knowledge of the Toxtrap tubes, but your point is made simply by asking the questions. §2:11 Articles Regarding the Trapping and Retesting of Breath Samples “The Trapping, Storing and Subsequent Analysis of Ethanol in In-Vitro Samples Previously Analyzed by a Nondestructive Technique,” Wilkinson, D.R., Sockrider, D.W., Bartsch, C.L., Kataoka, Y.G. and Zettl, J.R., Journal of Forensic Sciences, JFSCA, Vol. 26, No. 4, Oct. 1981, pp 671-677. This study trapped the breath sample analyzed on an Intoxilyzer 4011AS in a silica tube similar to a Toxtrap. The sample was then re-analyzed using gas chromatography. The experiment involved testing at different time intervals to determine how long the sample would remain viable. The average deviation was plus or minus 5%. The study emphasizes that the amount of silica and the size of the silica particles were very important to the accuracy of the results. E. Mouth Alcohol and the Slope Detector §2:12 Function of Slope Detector The Intoxilyzer 5000EN has a mathematical algorithm within its programming that is referred to as a “slope detector”. It is intended to identify mouth alcohol and invalidate the test if it is present. The theory is that in a normal breath test, the BrAC is rising at a particular rate as the breath is blown into the machine. If the BrAC rises quickly and then begins to decrease, the slope detector is triggered and the test is invalidated due to the presence of “mouth alcohol,” that is, alcohol from the mouth and not from the deep lung alveolar air. The problem is that the slope detector does not always work. To test the slope detector, the Technical Supervisors swish an alcohol substance around in their mouths and then blow into the machine. If the test is invalidated, the slope detector is considered to be working properly. The problem with this type of testing of the slope detector is that the person testing presumably does not have alcohol in his system. The issue is not mouthwash causing a high breath test result. The problem with mouth alcohol is the add-on effect of alcohol in the breath being combined with mouth alcohol to give a false-high reading. The 15 minute observation period is intended to allow mouth alcohol to dissipate. Unfortunately, this time period usually involves the officer writing his report or typing information into the machine. This is a far cry from the “careful observation” recommended by Dr. Jones in the article at §2:14. Very few officers actually sit and observe the test subject to ensure no burping occurs before the test. 17
    • §2:13 Cross-Examination Questions for Technical Supervisor Q: You would agree that alcohol in the mouth could affect the breath test? Q: Operators are required to be in the presence of the subject for 15 minutes prior to the test? Q: This is to ensure the subject does not put anything in his mouth? Q: You would agree that this period is also meant to ensure that alcohol from the stomach does not enter the subject’s mouth? Q: A hiccup or a burp could cause this? Q: Regurgitation or vomiting could cause this? Q: Texas requires operators to be “in the presence of” the test subject for 15 minutes? Q: Do you agree with Dr. AW Jones that “careful observation” of the test subject by the operator is an important factor in a breath test? Q: We can agree that no careful observation was done in this case? §2:14 Scientific Articles  “Physiological Aspects of Breath Alcohol Measurement,” A.W. Jones, Journal: Alcohol, Drugs and Driving, Vol. 6, April-June 1990, pp 1-25. From the article under the heading “Regurgitation or Vomiting of Stomach Fluid Contents”: Any attempt to invalidate results of breath-alcohol analysis for legal purposes by alleged belching or burping immediately before supplying a sample for breath for analysis must be considered seriously. The breath-instrument operator should make careful observations of the subject and record any body movements or unusual behavior just prior to testing. §2:15 Jury Instructions: No 15 Minute Observation Period Attorney Gary Redman has drafted suggested jury instructions for the situation where the operator did not observe your client during the 15 minute observation period. With his permission these are reproduced below: You are instructed that in order for you to consider any chemical breath test given to the defendant, you must first determine beyond a reasonable doubt that the regulations of the Texas Department of Public Safety for breath testing have been complied with. These regulations include that the breath test operator shall remain in the presence of the subject at least 15 minutes before the test. You are instructed that in this case you must first determine beyond a reasonable doubt that all of the regulations and methods for conducting these tests were complied with before you may consider the results of the test for any purpose whatsoever. Now, if you find beyond a reasonable doubt that the test administered to the defendant was in compliance with the regulations and methods you shall consider such test and give to it whatever weight and credibility you choose to in your deliberations. If you do not so find beyond a reasonable doubt or if you have a reasonable doubt as to the test given to the defendant, then you shall not mention or refer to it for any purpose during your deliberations. 18
    • F. Tolerance §2:16 Built in Error Range A test result is considered to be within tolerance if the two breath samples are within .02 of each other. The Technical Supervisor will not admit that this is an “error range” but that is exactly what it is. This issue is particularly useful if your client’s score is fairly low. Also, most Technical Supervisors will admit an error range of 5% or .005 (they may call it a confidence interval or they may admit to a confidence level of 95%). They will also admit that after the first sample, the air blank cycle can measure up to 0.007 in the sample chamber and it will report as a 0.000. This is often referred to as the “air blank fallacy” by DWI attorneys. §2:17 Cross-Examination Questions for Technical Supervisor Q: The second breath test sample must be plus or minus .02 of the 1st breath test sample? Q: So if a person blows a .09, the second sample could be a .07 or a .11 and the test would be considered to be within tolerance, correct? Q: The machine has a margin of error of plus or minus 5 percent or .005? Q: The sample chamber have an alcohol reading of up to 0.007 in the sample chamber after the first test sample is given but it will register as 0.000, correct? PRACTICE TIP: When the second test is lower If your breath slip indicates a second score that is lower than the first, always ask the Technical Supervisor if that means that your client’s alcohol concentration was declining while he was taking the test. For example, if the first blow is .093 and the second is .086, a jury may believe that your client was in the elimination stage. You need to have the Technical Supervisor testify that a person can not eliminate that much alcohol in 2 minutes. G. Disconnect Defense §2:18 Arguing the Defense Dr. Fran Gengo, Pharm.D, a pharmacology professor in Buffalo, New York, is a proponent of what is often referred to as the “disconnect defense.” This defense arises when your client’s behavior does not match the BrAC. For example, your client does not look impaired but blows a .19. The best use of this defense can be summarized as follows: Ladies and Gentlemen of the Jury, I don’t know what is wrong with that machine but it must be broken because you saw for yourself that Sue looks just fine on that videotape but her breath score indicates she would have had 12 beers in her system when she took that test. You have to decide if you believe your own eyes or the government’s machine. 19
    • §2:19 Cross-Examination Questions for Technical Supervisor Borkenstein instructor and well-known alcohol researcher Dr. Kurt Dubowski created a chart called “Stages of Acute Alcoholic Influence/Intoxication” which describes predictable signs of intoxication at various BAC levels. This chart can be used to cross-examine the Technical Supervisor on a disconnect defense. The chart itself is well-known and widely available on the internet. In summary, Dr. Dubowski concludes the following: 0.01 - 0.05 Subclinical Behavior nearly normal by ordinary observation 0.03 - 0.12 Euphoria Mild euphoria, sociability, talkativeness Increased self-confidence; decreased inhibitionsDiminution of attention, judgment and control Beginning of sensory-motor impairment Loss of efficiency in finer performance tests 0.09 - 0.25 Excitement Emotional instability; loss of critical judgment; Impairment of perception, memory and comprehension;Decreased sensatory response; increased reaction timeReduced visual acuity; peripheral vision and glare recoverySensory-motor coordination impairedDrowsiness 0.18 - 0.30 Confusion Disorientation, mental confusion; dizziness Exaggerated emotional statesDisturbances of vision and of perception of color, form, motion and dimensionsIncreased pain thresholdIncreased muscular coordination impairmentStaggering gait; slurred speechApathy, lethargy 0.25 - 0.40 Stupor General inertia; approaching loss of motor functions Markedly decreased response to stimuliMarked muscular coordination impairmentInability to stand or walkVomiting; incontinenceImpaired consciousness; sleep or stupor 0.35 - 0.50 Coma Complete unconsciousnessDepressed or abolished reflexesSubnormal body temperatureIncontinence Impairment of circulation and respirationPossible death 0.45 + Death Death from respiratory arrest When questioning Technical Supervisors about the chart, they will often refer to “tolerance” in an attempt to infer your client is essentially an alcoholic – i.e., he can appear normal while still being highly intoxicated. DO NOT LET THIS PASS. The Technical Supervisor KNOWS NOTHING about your client and you must emphasize that he is guessing and trying to make up an explanation for a breath score that does not fit the facts of the case. Q: You are familiar with Kurt Dubowski’s chart “Stages of Acute Alcoholic Influence/Intoxication”? 20
    • Q: This is a very well-known chart that is published or referenced in many books and articles relating to alcohol and its effects on the body? Q: The chart breaks down the predictable signs of alcohol’s effects at various blood alcohol levels? Q: You would agree with Dr. Dubowski that the signs of intoxication are predictable? Q: You have not viewed the video in this case? Q: You have not read the police report? Q: You mentioned the word “tolerance”? Q: Are you referring to behavioral tolerance, which is the brain’s adaptation to daily or near daily exposure to intoxicating concentrations of ethanol? Q: Are you testifying that my client has developed behavioral tolerance to alcohol? Q: In fact, you have absolutely no knowledge about my client, correct? Q: You certainly have no basis to testify that he has any “tolerance” for alcohol, do you? [You can then go into the particular symptoms you would expect to see in your client if he was TRULY at the particular BrAC alleged in your case. Since the Technical Supervisor is unlikely to have viewed the video, you can save your arguments for closing regarding the absence of these symptoms in your client.] H. Not Specific for Alcohol/Interferents §2:20 The Problem of Interferents The Intoxilyzer does not test specifically for alcohol. Many substances absorb infrared energy in the same wave lengths as ethyl alcohol and can be incorrectly reported by the Intoxilyzer as alcohol. The Intoxilyzer has been updated several times over the years, in part to deal with the issue of interferents causing false positive results. In response, CMI went from a 3-filter wheel to a 5-filter wheel in order to try to rule out potentially interfering substances that might absorb light in the same region of the spectrum as ethyl alcohol. Subjects who work around solvents such as mechanics, manicurists, cabinet makers, factory workers, etc. may be exposed to chemicals that, when coupled with alcohol in the breath, can give a falsely high BrAC. At one time, acetone was thought to be the main culprit that interfered with valid breath testing and the filter wheel was intended to screen for that substance. However, other compounds such as methyl ethyl ketone, toluene, and isopropanol were found in studies to give false positives on the Intoxilyzer. The addition of the 5- filter wheel was intended to detect toluene and acetaldehyde. However, other potentially interfering substances have not been dealt with on the Intoxilyzer 5000EN. Use of a breath test expert may be necessary in these types of cases because Technical Supervisors are unlikely to admit that this is a potential problem. §2:21 Cross Examination Questions for Technical Supervisor The Intoxilyzer 5000EN is a narrow band infrared spectrophotometer. That means that it is supposed to measure the amount of infrared energy that is absorbed by ethyl alcohol within the sample chamber of the machine. DWI attorney Mike McCollum does an excellent job of pointing this out in his cross examination of the Tech Sup: Q: The Intoxilyzer 5000EN is a narrow band infrared spectrophotometer? 21
    • Q: It measures the amount of infrared energy that is absorbed by the ethyl alcohol molecules inside the sample chamber at a given time, correct? Q: The infrared energy is what is coming from the light bulb? Q: The machine doesn’t know where the alcohol is coming from that it’s measuring, does it? Q: It simply measures the loss of infrared energy inside the sample chamber? Q: We know that the machine will measure alcohol from other sources than human breath, correct? Q: It measures the alcohol from the jar that contains the simulator solution, right? Q: Would you agree that the amount of alcohol in the sample chamber is very small? Q: It’s microscopic, isn’t it? Q: So whatever alcohol from whatever source gets into that sample chamber is going to be measured, correct? §2:22 Scientific Articles About Interferents The following articles are particularly helpful in understanding the potential issues with interferents and the 5000.  “The Response of the Intoxilyzer 5000 to Five Potential Interfering Substances,” Jonathan P. Caldwell and Nick D. Kim, J. Forensic Sci 1997: 42(6):1080-1087. From the article: “The results of this study clearly indicate that all five substances tested for potential interference with the Intoxilyzer 5000 will interfere to some degree. Even so, the performance of this instrument is significantly better than that of the earlier model Intoxilyzer 4011AS-A. Four of the five compounds (toluene, the two xylenes, and isopropanol) are registered by this version of the Intoxilyzer as interferences by the instrument at given points in their concentration ranges, and one (methanol) is not. From the point of view of where this interference mechanism is triggered, the compounds can be ranked in terms of their probability (if present) of causing an undetected false-positive reading for ethanol in this order: methanol – toluene – the xylenes – isopropanol…. [M]ethanol ingestion and intoxication is (fortunately) known to be comparatively rare, but there is quite a reasonable likelihood that glue sniffers, home hobbyists using toluene based glues, or workers in the painting industry would contain toluene on their breaths at concentrations above (endogenous) background levels. Overall, the risk of interpretation is limited to a few compounds, and will probably only occur in unusual circumstances, but prosecuting officers should be aware of these.”  “Case Notes: The Effect of Solvents on Measurement of Breath Alcohol Concentration (BrAC) by the Intoxilyzer 5000,” Jay M. Poupko, Ph.D, Air Force Drug Testing Laboratory, ToxTalk, Vol 23, No 1, March 1999 This is a Case Note that discusses various substances that have the potential to interfere with a BrAC reading on an Intoxilyzer. Specifically, Dr. Poupko lists 22
    • methanol, isopropanol, xylene, methyl ethyl ketone, ethyl ether and aliphatic hydrocarbons as substances that could lead to a false positive or a falsely high reading. I. Breathing Technique and Lung Size §2:23 Breathing: What to Look For Breathing patterns can alter the alcohol concentration in the breath sample. Short, shallow breaths can lead to a lower breath score while holding one’s breath can lead to a higher score. Pay close attention to the manner in which the Operator has your client blow into the machine. Make note if your client is asked to take a deep breath and hold it until the Operator tells him to begin to blow. Another red flag is the crying client. A test subject who is sobbing is not breathing in a normal manner and may be holding her breath between sobs. §2:24 Cross-Examination Questions for Technical Supervisor Q: You are aware that breathing pattern can impact the reading on a breath test? Q: According to Dr. AW Jones, holding one’s breath prior to blowing into the breath test machine can over estimate the breath alcohol level by as much as 15%, depending on how long the person holds their breath? Q: You have not seen the video in this case? Q: You are not aware, then, that the Operator told my client to take a deep breath and hold it? Q: Isn’t the minimum amount of time needed to blow an acceptable breath sample approximately five seconds? NOTE: Technical Supervisors will vary on this response. Some will say 4-5 seconds. Some will say 6 seconds. Q: It’s true that the score rises the longer you blow? Q: Operators are taught to try and have the subject blow for approximately the same length of time with each sample to try to ensure 0.02 agreement, correct? Q: If a subject blows for the minimum required time on the first sample and then blows for a much longer time on the second sample, there’s a good chance there won’t be 0.02 agreement, right? Q: The second sample may be more than 0.02 higher than the first due to differences in how long the subject blew? §2:25 Lung Size Individuals with smaller lung size can blow a sample that has a significantly higher alcohol reading than someone with a normal or large lung capacity. Dr. Michael P. Hlastala, PhD, of the Department of Physiology and Biophysics, Division of Pulmonary and Critical Care Medicine, University of Washington, has done extensive research and study in this area. The Intoxilyzer 5000EN does not have the capability to measure volume of breath. However, the Drager instrument used in Alabama measures both breath temperature and breath volume. The Datamaster instrument, manufactured in Ohio, measures also measures breath volume. 23
    • §2:26 Scientific Articles on Breathing, Breath Alcohol, and Lung Size  “Physiological Aspects of Breath Alcohol Measurement,” A.W. Jones, Journal: Alcohol, Drugs and Driving, Vol. 6, April-June 1990, pp 1-25. From the article under the section “Breathing Technique”: The subject’s manner and mode of breathing just prior to providing breath for analysis can significantly alter the concentration of alcohol in the resulting exhalation (Jones, 1932c; Schoknecht et al., 1989). The effect of hyperventilation, high frequency deep inhalations and exhalations of room air, immediately before blowing into the breath analyzer has now been well studied (Mulder and Neuteboom, 1987; Normann et al., 1988). This breathing maneuver lowers the breath-alcohol concentration by as much as 20% compared with a single moderate inhalation and forced exhalation used as control tests (Jones, 1982c). Holding the breath for a short time (20 seconds) before exhalation increases the alcohol concentration in exhaled air by 15%.  “The Impact of Breathing Pattern and Lung Size on the Alcohol Breath Test,” Michael P. Hlastala and Joseph C. Anderson, Annals of Biomedical Engineering, 2006. From the article: One of the fundamental assumptions of the ABT (alcohol breath test) is that during exhalation, the BrAC continues to increase until alveolar air reaches the mouth. At this point, the BrAC levels off. This observation has been assumed to indicate that EEAC (end-exhaled alcohol concentration) is equal to AAC (alveolar air concentration). However, breath alcohol always increases during exhalation as air moves out of the mouth, never reaching AAC. The flatness of the slope of the exhaled alcohol profile simply means that exhalation has stopped. It is not an indication of alveolar air. . . . The major thesis of this paper is that lung size and breathing pattern influence BrAC reading determined with a breath-testing instrument. Everything else being equal (including BAC), the subject with the smallest lung size would have the greatest BrAC. About the Authors **Deandra M. Grant has practiced criminal law for 19 years and has represented hundreds of Texans charged with criminal offenses including DWI, violent felonies, and sex crimes. She has successfully completed many training programs related to DWI defense including the operator certification course for the Intoxilyzer 5000, the breath-test machine used in Texas. As a former prosecutor, she knows firsthand how to counter the prosecutor’s evidence and strategy. 24
    • She may be reached at http://www.texasdwisite.com or 972-646-1847. Kimberly Tucker has practiced criminal law since 1995 and has represented hundreds of Texans charged with criminal offenses, including numerous DWI cases. She has successfully completed many training programs related to DWI defense, including the practitioner and instructor courses for the SFST certification and the overview course for the Intoxilyzer 5000. In addition to running a successful law practice that focuses exclusively on criminal defense, Mrs. Tucker is raising two sons and running for judge in Denton County, Texas. 25