Georgia drivers who are suspected of DUI must submit to a chemical test of their blood, breath, or urine at the officer’s request. However, before submitting to any test the officer must first properly advice the motorist of their rights under Georgia law. Georgia chemical testing of the blood, breath, and urine is an incredibly complex area of the law which gives skilled defense attorneys many opportunities to attack the admissibility, and reliability of the evidence.
Here, we discuss the many complexities and issues relating to Georgia breath testing on the Intoxilyzer 5000 and Intoxilyzer 9000. Since this area is fraught with issues, the easiest way to present this information is through the most frequently asked questions involving breath machines and breath testing.
What machines does the state of Georgia use to test a motorist’s breath?
Georgia uses the Intoxilyzer 5000, and Intoxilyzer 9000. Georgia is in the process of upgrading all Intoxilyzer 5000s to Intoxilyzer 9000’s, which must be completed by December 2015.
How accurate are these machines?
The machines have the ability to be accurate, but several factors can influence the machines’ reading. Medical issues such as diabetes, esophageal hernia, heartburn, liver disease, and even a fever can interfere with the accuracy of the Intoxilyzer 5000 and Intoxilyzer 9000. Further, there are certain substances a person may have been exposed to that can interfere with the machines’ accuracy: Toluene, acetaldehyde, and acetone are just a few of these substances.
People who are on certain diets, or medications, may have abnormally high results as well. Even hyperventilating will yield skewed results on these machines. Certain substances in a subject’s mouth such as tobacco, mints, lip balms, denture adhesive, braces, bridgework, etc. may affect the accuracy of the breath testing machines. The machines may also be affected by Radio Frequency Interference (RFI) from radio waves emitted by the officer’s walkie-talkie, or cell phones. The Intoxilyzer 5000 and Intoxilyzer 9000 also cannot distinguish between mouth alcohol and actual blood alcohol.
Additionally, the Intoxilyzer 5000 and Intoxilyzer 9000 allow themselves a variance of .20 between the 2 breath samples. For example, if a subject blew a .099 and a .079 the machine considers itself to be within acceptable parameters of accuracy. A 20% variance rate to be considered within parameters is not very accurate, and would only be considered accurate by a government agency.
The bottom line is this: The Intoxilyzer 5000 and Intoxilyzer 9000 are just a machines, and all machines screw up from time to time for no known reason. Think about your computer or other wireless internet devices that will not work one minute and work perfectly the next. All we can say is that for whatever reason, machines screw up. The Intoxilyzer 5000 and Intoxilyzer 9000 are machines like any other, and they can malfunction.
How often are the Intoxilyzer 5000 and Intoxilyzer 9000 checked for accuracy?
Under Georgia law, the Intoxilyzer 5000 and Intoxilyzer 9000 must be checked for accuracy once a quarter. Checking the calibration once every 3 months is not very accurate. These practices favor inaccuracy and unreliability in breath testing.
Is there anything else the State of Georgia does that may interfere with the accuracy of the Intoxilyzer 5000?
You bet! When the Intoxilyzer 5000 is checked quarterly, the samples used to check the machines are not preserved and therefore proper calibration at the time of inspection cannot be verified.
Someone told me the Intoxilyzer 5000 runs a self-diagnostic check before each breath sample to ensure the machine is working properly. Is this true?
Before every breath sample is taken, the Intoxilyzer 5000 runs a self-check and displays “OK” if the machine doesn’t detect any problems with itself. However, up to 34 different critical pieces of the Intoxilyzer 5000 can be removed from the machine, and the machine will still display an “OK” after the self-diagnostic check. In short, the self-diagnostic check is worthless.
Are the Intoxilyzer 5000 and Intoxilyzer 9000 good breath testing machines?
Just like any other government, the government in Georgia has a budget and likes to save money. In doing so, it left some very important options off of the “Cadillac” Intoxilyzer 5000. First, the Georgia Intoxilyzer 5000 can easily be fitted with an adapter that would capture and retain every subject’s breath sample. These samples have a 98% accuracy rating for up to 2 years. However, Georgia and the GBI opted not to have this important option installed on the Georgia Intoxilyzer 5000. The second option Georgia did not have installed on its Intoxilyzer 5000 is a “flow rate” to measure the volume and flow of the subject’s breath. This option is important to prove to the officer’s that the subject is blowing into the machine properly, and is not merely pretending to blow. Again, Georgia decided not to purchase this technology.
Worst of all, the Intoxilyzer 5000 is 100% computer friendly and has a Z80 microprocessor chip and a serial port on the back of the machine. This means a complete history of each test, each machine’s defects, and each machine’s aborted tests could be kept by the GBI simply by downloading the information via a modem, or through an onsite computer. The GBI has taken no steps to record these problems because such proof of failures, test errors, and trends of error would destroy the machine’s credibility. In summary, Georgia’s Cadillac is a lemon.
Recently, Georgia has decided to upgrade the Intoxilyzer 5000 to the Intoxilyzer 9000. Georgia again had a bidding process and chose an inferior machine: the Intoxilzyer 9000.
Is the Officer who administers the test well trained on the Intoxilyzer 5000, or Intoxilyzer 9000?
No. The Intoxilyzer 5000 and Intoxilyzer 9000 Operator’s Course is a 16 hour, 2-day course. The entire first day is devoted to basic human biology, and the students don’t touch the machines until the second day. Once certified, the “refresher” course to keep your certification is only 4 hours. Other states require 40 hours of training!
Intoxilyzer 5000 and Intoxilyzer 9000 Operators are not taught how the machine works. They have no knowledge of the inner workings of the machine, or how to repair it. This lack of knowledge is done purposefully by the GBI Department of Forensic Sciences. They do not want these operators to know the inner workings of the machine because they don’t want DUI attorneys to able to cross-examine these operators on the finer points of the Intoxilyzer 5000 or Intoxilyzer 9000. All the operator is taught to do is turn on the machine, set up the machine for a test, and then administer the test. Anything beyond these three simple acts the operator simply does not know.
Who in Georgia repairs the machines when they do not work?
No one in Georgia is certified to repair the Intoxilyzer 5000 or Intoxilyzer 9000 when it needs repair. Only the Intoxilyzer 5000 and Intoxilyzer 9000’s manufacturer, CMI, may repair the machines. Even the officers who certify that the machine is functioning properly may not repair the machine. The men who certify that these machines work properly may not repair them because these operators don’t know how the machines work.
I gave 2 breath samples into the machine, which one is considered my actual BAC by the state?
All breath tests require the subject to give 2 samples. Of those 2 samples, the lower of the 2 samples is considered to be your BAC for purposes of your DUI. For example, if you blew a .080 and a .074 then the .074 will be used by the state. Again, if you blew a .194 and a .182 then the .182 will be your BAC.
I gave one breath sample and then refused to give another. What does this mean?
In this scenario, the one breath sample you did give will be used as your BAC. You will not be charged as having refused the test because you did give one sample.
Will the recent use of mouthwash or other substances skew my results on the Intoxilyzer 5000 or Intoxilyzer 9000?
The Intoxilyzer 5000 and Intoxilyzer 9000 Operators will tell you that mouth alcohol will not be detected by the machines, but this is simply not true. Many experiments have shown that the Intoxilyzer 5000 and Intoxilyzer 9000 will detect and register mouth alcohol.
Aside from mouthwash, mouth alcohol can interfere with the results of the Intoxilyzer 5000 or Intoxilyzer 9000 in other ways. If a subject burps, vomits, etc. within a 20 minute period before being tested on the machine, any alcohol left in the mouth from the belch or vomiting may skew the subject’s test results upward. Just as in the Scope example above, the machine is not supposed to detect this mouth alcohol, but there is often a huge gap between what the machine does in theory and how it performs in reality.
Is it true sucking on pennies will help me beat an Intoxilyzer 5000, Intoxilyzer 9000, or Breathalyzer?
No, this is not true. Lots of people have heard this urban legend, and all that will happen is the officer will book the pennies into evidence, and the jury will hear what you were doing. The rumor behind this legend is that the machines read electrical current inside your mouth to help determine your BAC level. The copper from the pennies is supposed to absorb this electricity so the machine won’t have anything to detect. Both the legend and the way the machine works in these stories are false.
I had a fever when I took my breath test. Could this have affected my results?
Yes! A 1-degree change in body temperature can affect the breath result by an average of 6 to 7%. A person who is running a fever that is 2 degrees high could have a result that is off by 12 to 14%. In California, for instance, the state’s breath machine records each subject’s body temperature at the time of testing. In Georgia, the Intoxilyzer 5000 and Intoxilyzer 9000 do not. The Intoxilyzer 5000 and Intoxilyzer 9000 assume a constant body temperature for all subjects at 98.6 degrees.
How does a breath machine tell how much alcohol is in my blood?
The Intoxilyzer 5000 and Intoxilyzer 9000 operate on the principle of Henry’s Law. Henry’s Law states that the concentration of a material in a gas state above a liquid containing the dissolved material will be proportional to the concentration of the material in the liquid state. More plainly stated, the gas above a liquid will have the same concentration of a substance in it as the liquid beneath the gas.
How does this apply to you and your BAC? If you’ve been drinking, alcohol vapors (the gas) will come into contact with your blood (liquid) in your lungs. While in the lung, the alcohol diffuses across the one cell thick semi-permeable membrane of the capillaries into the air of the lung. The higher the concentration of alcohol in a subject’s blood, the greater the proportional concentration of alcohol in the air in the lung. When a subject breathes this air into the Intoxilyzer 5000 or Intoxilyzer 9000 it measures this concentration.
In order for the Intoxilyzer 5000 or Intoxilyzer 9000 to be able to apply Henry’s Law to breath testing, the machine has to assume many constants about the human body. For instance, the Intoxilyzer 5000 and Intoxilyzer 9000 assume a 2,100 to 1 ratio in converting alcohol in the breath to estimates of alcohol in the blood. However, this ratio varies from person to person with a range of 1,900 to 2,400. This number not only varies among people but also varies in an individual over time. Some breath machines assume a hematocrit of 47%. However, the hematocrit level in men ranges from 42 to 49% and ranges 37 to 47% in women. The Intoxilyzer 5000 and Intoxilyzer 9000 also assume an average body temperature of 98.6 degrees (see question above). As we all know, not every person is the same. Having breath machines that assume all men, women, and people in general are all the same is discriminatory.
Which test is better, breath or blood?
A blood test is generally thought to be more accurate. Officers almost always ask for a breath test because it is more convenient for them. However, if you submitted to a state-administered blood test there is a good chance your numbers have been skewed or compromised. The best blood tests come from independent labs that test the actual blood, with properly calibrated equipment, and properly stored specimens.
Tyler Moffitt is a licensed Georgia Attorney who defends clients throughout Georgia. If you have been charged with a DUI give us a call at 762-323-1460
Tyler Moffitt is a Family Law and Criminal Defense Attorney who practices Carrollton, LaGrange, and Columbus, GA. He graduated from John Marshall Law School, and has been practicing for several years now. Tyler Moffitt takes great honor in defending the accused. Learn more about his experience by clicking here.