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How Is The Breathalyzer Used At The Station?

Usually at the station, although sometimes the evidential machine may be with the officer in the field, they would need to do a 15-minute observation to make sure the person was not burping, regurgitating, eating, smoking or drinking. Obviously, the person would not be doing a lot of those things because they would usually still be handcuffed for a while and the officer would be sitting right there with them and they would not let them even go to the bathroom. The officers often do not comply with this 15-minute observation and they just take the person right from the car and put them on the machine, even though they were supposed to wait 15 minutes and observe the person for that period of time.

They would give instructions on blowing into the machine and they would tell the person to blow when the machine beeped or clicked or if a light went on. The officer would tell the person to do a continuous strong blow until they told them to stop. Sometimes the police would say “Blow, blow, blow, blow, harder, harder, harder, harder” if they thought the person was not blowing hard enough. The person would be required to give two breath samples and depending on the type of machine, the mouth piece would need to be changed after the first blow. They would have to blow two blows and if those blows were within 0.02 of each other, then those would be considered valid tests. If the two blows were not within 0.02 of each other, then they would usually have the person do a third blow.

Certain error messages regarding deficient samples might come up on these machines, which might require the officer to have the person do another blow. They would need to wait another 15 minutes if the person got an invalid sample, which is an IVS message, especially on the Intoxilyzer 5000 machine, which is an older machine only used in San Francisco and which is not used anywhere else in the San Francisco Bay Area, because that would mean mouth alcohol. If that was the case, they would have to start the test over after 15 minutes. Once they have their two samples, and they had already plugged in all the information about the officer giving a test and the person who was blowing into the machine, it would give a printout. The officer would usually not give that to the person who had just blown into the machine, although they do in some counties. They should show the person their results because they would have the right to know, but that would not always happen and it would just depend on the officer. They would then finish the booking process and the person would get to wait quite some time until they were released from jail and in some counties, they would be made to bail out of jail.

What Would Cause An Inaccurate Reading Or Malfunction In The Breathalyzer Test?

The possibility of mouth alcohol from the contents of the person’s stomach, their throat, teeth or tonsils, along with a variety of different medical issues might affect the accuracy of the breath test machine. Gastric reflux, called GERD, is becoming more recognized by people in this country, not just the doctors. It is basically a reflux, but GERD is not something that would make the person burp excessively, it is a deterioration of the esophagus and basically the clamps at the bottom and top of the esophagus or the lower and upper esophageal sphincters. The stomach acids not operating properly would have basically eroded those clamps or those flaps of skin keeping the esophagus closed, so there would be a constant supply or stream of air coming from the stomach up into the throat and out the mouth. This could completely skew any breath result rating if there was still alcohol in the stomach which was not fully absorbed into the system, even a microscopic amount, and this would make the reading much higher. We often see something like this if someone did the preliminary alcohol screening test and were really high but then shortly after did a blood test which showed they were much lower. The reading would show eventual mouth alcohol, because it would have to get to the mouth but very often that could be reflux. People used to think reflux would show two completely different readings, which may be a 0.12 or a 0.17 or something like that whereas actually that constant flow of air coming up from the stomach could give readings exactly the same on a reflux or a GERD test result.

Other things could also cause a false positive, like radio frequency interference, called RFI, on the machines. There might be ambient air issues where the air coming off people around the person contained alcohol molecules which would make it an environment that was not alcohol free. I was just talking to an attorney recently about people who wear Invisalign braces. These braces have plastic that goes around the person’s teeth and alcohol can be trapped in that which can result in a false positive because of the mouth alcohol that was picked up by the machine. There are many different ways we might end up with false positives in these cases.

What Are The Consequences Of Declining The Evidential Breathalyzer Test?

The officer would have to properly admonish the person regarding what would happen if they declined because if it was a first offense DUI in California, the person would be looking at a year of no driving with no restriction, no interlock or anything else and they would not be able to drive if the court or the DMV determined they refused to take a chemical test after being properly admonished and properly detained and then properly arrested for a DUI. The downside to that currently is that where in the past they would not necessarily force a blood test, they would now, or they could get a warrant from a judge and do a forced blood draw. Not only would the person be facing that one-year and no driving, but they would also very likely have a chemical test result and they could get the person for the DUI as well. It would usually not be a wise decision to decline a chemical test. A lot of people try and delay, but declining is not advised in almost any case. If the person did not need their license for a year and they believed the police would not get a warrant and do a blood draw, then they might get lucky and the police might not touch them. People decline all the time in a lot of states, and I believe this is often done in Texas. I have talked to a number of people over the years who said they have a lot of success in declining these tests in Texas, however it would not be a good idea to do that in California.

For more information on Evidential Breath Test, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (415) 523-7878 today.

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Aaron Bortel
With 30 years of specialized experience in DUI defense, Attorney Aaron Bortel is a dedicated advocate for those facing DUI charges in the Bay Area. Committed to helping clients avoid jail, save their driver’s licenses and jobs, and prevent permanent criminal records, he combines deep legal expertise with genuine care for his client's welfare. Trust in a lawyer who not only defends but truly supports you through challenging times.

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