There are two types of breathalyzers that are commonly used in Atlanta DUI cases: the portable breath test (or PBT) and a form of the Intoxilyzer. Depending on which one you are administered there may be a number of difference defenses available. To discuss these defenses or what steps you may be able to take to help your case, call and schedule a consultation with an experienced attorney today.
The first is the portable breath test (PBT) which is a hand held device that the officer holds up directly to the driver’s mouth. This device is generally small enough that an officer can keep it in his pocket or a small case in his or her car. This particular device is not very reliable because PBTs are susceptible to interference from the residual mouth alcohol or other types of chemicals.
As such, law enforcement officers are only allowed to testify in trial that they used such a device and the device either detected alcohol or did not detect alcohol. The officer is not allowed to testify about any sort of numerical result from the PBT in their testimony, despite the fact that most of these devices give a numerical result, due to the fact that the court’s have ruled that the numerical result of the PBTs are not scientifically reliable enough for juries to consider as evidence.
The other type of breath test machine that we see in Georgia is the large table-mounted types. These are typically about the size of an old electric typewriter, two of which are currently being used in Georgia. One is called the Intoxilyzer 5000, and it is being phased out of use currently, and the newer type is called the Intoxilyzer 9000. CMI Incorporated in Kentucky makes them both and the inner working of those machines, specifically the software of how the machine works, is actually protected through intellectual property laws.
What that means is that, while the CMI scientists knows how the software works and while the scientists from the Georgia Bureau of Investigation are given access to this information, proprietary software is never shared with the defense attorneys. All a lawyer really knows is that someone blows into that machine and it spits out a number the actual software and the availability of the defense to evaluate that software have been litigated repeatedly in the Georgia courts. The Georgia courts have said, “Yes, the defense should be allowed that software,” but the courts thus far in Kentucky have refused to turn it over.
We hear so many misconceptions about breath testing. Mostly they involve ways that people think you can beat the breath-testing machine. Some people say that if you put a mint in your mouth or if you leave a penny under your tongue when you take the breath test, it will defeat breath test. None of that appears to be true.
Also, misconceptions are that the breath test is extremely accurate and the fact of the matter is that every time in Georgia that a person is required to give a breath test after they have been arrested, they are required to give two samples and those samples must be within 5% of each other, that is all. Even Georgia law reflects the fact that this process of trying to figure out some of those concentrations based on the air that they blew out of their lungs is not an exact science.
Breathalyzers are susceptible to a host of interfering substances and have software that is designed to weed out those interfering substances from the results, however since attorneys are not privy to that software, it is unclear how accurate that is.
Some years ago, there was a machine called the Intoximeter 3000, and in one case, an off-duty police officer was hired to follow the individual around during the day. The accused individual worked with some very tricky types of paints, so the officer went with him, accompanied him through the day, and at the end of the day gave him a breath test and the man tested over twice the legal limit based on the paints that he had been working with. The officer was there to testify that the man had not received any alcohol.
Some of the breath testing machines are also susceptible to radio frequency interference, so if an officer is giving a breath test while he is using his radio or his cell phone, those radio waves can actually interfere with a test.
Finally, some people on special diets can create ketones in their system of certain types of diabetic reactions that can create chemicals that will be expelled through the breath and those can interfere with the breath testing as well and create inaccurate results.
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