The Intoxilyzer 5000 is the sobriety test of choice with most police agencies throughout the United States. But that doesn't mean you have to agree with law enforcement's enthusiasm. If you make the difficult decision to submit to a breath test and then find yourself unhappy with the results, all may not be lost. Did you know that the Texas Transportation Code gives you the right to an independent blood test, just for the asking (a police officer is not required to infrom you of this right?

There is little question that a blood test is far superior to a breath test. But most people don't understand why. Once you learn the scientific basis and methodology of Intoxilyzer testing, there is a good chance your views on the accuracy and reliability of the machine may never again be the same. After all, the Texas legislature couldn't have been all that enamored with the machine if they felt the need to provide you with the opportunity to have the results independently checked by a superior method of testing.

The first thing that most people are shocked to learn is that the Intoxilyzer 5000 has nothing to do with blood alcohol levels. It only measures breath alcohol levels. In fact, contrary to popular opinion, the Intoxilyzer doesn't even use its findings to make a calculation or conversion from breath alcohol to blood alcohol figures. Therefore, to embrace the validity of breath testing you must first accept the notion that there is a direct relationship between the amount of alcohol in a person's breath and the amount of alcohol in their blood. The Intoxilyzer 5000 assumes this ratio to be 2100 to 1. To put it simply, the manufacturer of the machine has made the assumption that:

The problem with calibrating the machines in this manner is that experts all agree that the 2100 to 1 breath to blood ratio is only an average. They will further warn you that not everyone has this magical 2100 to 1 ratio. In fact, what you will learn, is that if a person has a ratio lower than 2100 to 1, they will produce an Intoxilyzer result that will be artificially high. Just as true, if a person has a breath to blood ratio higher than 2100 to 1, they will produce an Intoxilyzer result that will be artificially lower. To date, the company that manufactures the Intoxilyzer, (CMI Corp.,) has yet to invent a method that would calculate the driver's true ratio and then make the appropriate correction for a more accurate breath test result.

Next, consider the Texas State Statutes that define "presumptive" or "per se" levels of impairment. There is a very different standard of alcohol concentration in the measurement of breath versus blood. Texas law provides that a violation of the law has occurred if:

Now consider what 210 liters of your favorite soft drink would look like.you get the picture! Does that mean the Intoxilyzer machine requires you to produce a breath sample sufficient to fill 210 liters? No, to the contrary you only have to fill a sample chamber big enough to hold 80 milliliters of air. But what it does mean, is that because of your inability to produce a sample 210 liters in size, the machine has a huge task to perform. For instance, in order to produce a .08 reading on the Intoxilyzer, the machine is forced to detect less than one millionth of one fluid ounce of alcohol in your breath sample! That amount is smaller than what would fit on the head of a pin. Given this minute size, wouldn't you think that checking the machine's obvious critical calibration criteria before having a driver submit to the test would be imperative to verifying the accuracy of the results?

Unlike strict laboratory policies adhered to in blood alcohol testing, states widely differ in the manner and frequency required for calibration checks of their breath testing equipment. Unfortunately, Texas is particularly lax when compared to other states. Consider these points:

• The Federal government promulgates guidelines to further insure accuracy in breath testing. Those guidelines recommend that breath test operators run a calibration check using a simulator solution, or "known standard," immediately before each subject is tested. A "standard" is a mixture that contains an exact known concentration. Running a "standard" is routine practice in all laboratory procedures. For example, the Texas DPS measures three separate known standards before analyzing alcohol levels in blood. It is quite common in other parts of the country to find breath-testing programs that in fact implement the recommended calibration check before each driver is tested. The results of the calibration check normally appear along with the driver's breath test results on his Intoxilyzer print out card.
• Breath testing in Texas does not include this safe guard. To the contrary, Intoxilyzer calibration checks in Texas are only required to be performed once every calendar month. (This period could be as much as sixty-two days if a simulator were run on the first day of a month and then not again until the 31st day of the following month.). In Texas, literally hundreds of people are routinely tested between calibration checks.
• In Texas, some calibration checks and maintenance logs are either typed or handwritten. Others utilize a recordation system as an automatic internal function. Many states use the machine's "ADMS" (Alcohol Data Management System) or "COBRA" (Complete on line Breath Archives). This software automatically records, preserves, and downloads by modem all data, including test results, calibration checks, and maintenance records. The information is then readily available for later inspection by both the prosecution and the defense.

Perhaps the greatest shortcoming in Texas' breath testing program is the failure to capture and preserve breath test samples. This is something the Intoxilyzer 5000 is already outfitted to accomplish. The practice is known as "trapping," and permits an extra sample of the driver's breath to be stored in an inexpensive ampoule for later independent testing. Such a practice is already in use in other states. Drivers in those states have the benefit of having their "trapped" breath sample independently analyzed by a laboratory implementing "gas chromatography." This technology is far superior to the "infrared absorption spectroscopy" used by the Intoxilyzer and considered the most accurate and reliable method of determining ethyl alcohol in body fluids and gases. If you guessed that gas chromatography was the process used in analyzing blood, you were correct!

Gas chromatography results are widely respected by the courts. A chemist in a hygienic clinical or forensic laboratory environment performs the analysis. Intoxilyzer testing on the other hand is typically done in the middle of the night by a law enforcement officer in the back room of the police station. Would you feel more comfortable with a brand new sterile glass collection tube for your blood, or the sample chamber of the Intoxilyzer machine into which literally thousands of people have previously blown?

Gas chromatography reports only the ethyl alcohol present in the sample. Whereas, the infrared spectroscopy method used by the Intoxilyzer is non-specific for ethyl alcohol and has to be careful with improperly detecting other irrelevant methyl alcohol-like substances. For instance, volatile hydrocarbons, (i.e. paints, paint thinners, and varnishes), that a person may have been exposed to, and "interferents" that may be present in the air of the testing room, (i.e. cleaning fluids). Over the years, the manufacturer of the Intoxilyzer has implemented more and more "filters" in its effort to overcome these deficiencies in the machine. Texas could avoid much of the controversy surrounding these issues if it upgraded its equipment to a second generation of breath testing instruments recently created by the National Draeger Corp. The new "Alcotest 7110" measures ethyl alcohol at a different wavelength that results in the instrument being far less likely to misread interfering substances.

Consider some other factors that could contribute to an inaccurate Intoxilyzer reading and note that they are all irrelevant to blood alcohol analysis:

• Belching or burping: To operate properly, the Intoxilyzer utilizes a deep lung or "alveolar" air sample. However, regurgitation or refluxing from the stomach can introduce pure alcohol into the sample chamber, which results in inflated readings.
• A fever: The Intoxilyzer 5000 machine is calibrated to assume that your breath temperature is normal, i.e. 34 degrees centigrade. As body temperature rises, the blood to breath ratio decreases. Therefore, a breath sample temperature higher than normal will result in an inflated reading of approximately 6 to 7% for every degree above 34 degrees centigrade. As a side note, the previously mentioned new machine produced by the Draeger Corporation has corrected this problem as well. It measures the breath temperature of the subject and then makes the appropriate adjustment before calculating the results.
• The presence of acetone in your breath: Acetone can be caused by diabetes or from fasting. The intoxilyzer is subject to misreading acetone as ethyl alcohol. Although the machine attempts to detect this substance and warn the operator, it is not infallible. Better technology is currently available in breath testing that greatly reduces the threat of inflated readings in this regard.
• Mouth alcohol: The presence of residual alcohol in the mouth can have a dramatic effect in producing inflated artificial Intoxilyzer readings. Dentures and partial plates have been known to trap alcohol and to restrict the body's natural ability to self-cleanse the mouth within a 15 to 20 minute time period. Mouth washes, breath sprays, and over the counter inhalers often contain ethyl alcohol. Studies have proven that the Intoxilyzer does a fairly good job through its use of a "slope detector" in discovering the presence of mouth alcohol. However, the machine is less than perfect. Although the 20 minute observation period is critical for accurate results, police officers often use this time to process paperwork and attend to other duties nearby. It is understandably difficult to require a police officer to sit and observe a subject for 20 minutes to make certain that he does not regurgitate something from his stomach.
• Inhalation of air bag talc: When a driver is involved in an accident that results in the deployment of the vehicle's air bag, the explosion causes the release of thousands of small particles of talc into the passenger compartment. Recent studies have confirmed that the driver's inhalation of this material and later exhalation into the Intoxilyzer can result in inaccurate readings. It is suspected that the particles of talc floating in the sample chamber absorb or displace light energy during the infrared spectroscopy and inadvertently produce an artificially inflated result.

So what's the bottom line?

If you failed the breath test, it is still possible you were not above the legal breath alcohol limit. Rather, the problem may be with the breath testing machine itself. The Intoxilyzer 5000 is worthy of your respect, but only when properly calibrated and used. It has nevertheless become somewhat out-dated. Newer improved technology in breath testing is available that addresses most of the criticism of the past. More importantly, the Texas breath-testing program is in serious need of revamping. It is time that law enforcement reevaluate their operating procedures with respect to the frequency and timing of calibration checks. Because citizens are essentially "tried" by this machine, it is critical that its accuracy be scrutinized and maintained to the highest possible standards. If Texas is not prepared to "trap" breath samples for later independent testing, than at a minimum, it needs to join those other states who mandate that the machine's calibration be verified immediately prior to testing each subject.

The limitations of breath testing and the inferior calibration procedures utilized in Texas should be cause for concern. Therefore, if you have made the difficult decision to submit to the intoxilyzer and are then unhappy with the results, you should always thereafter ask for an independent blood test. The Texas legislature recently modified the statute giving you this right. This statute codifies much of the appellate case law swelling around some of the former ambiguous points. You should know that police officers and breath test operators are under no legal obligation to remind you that you have the right to an independent blood test. However, the new statute does specifically state:

The law enforcement officer shall not interfere with the person's opportunity to obtain the independent test and shall provide the person with timely telephone access to secure the test, but the burden is on the person to arrange and secure the test at the person's own expense.

It is important to note that the failure of the law enforcement officer to meet this obligation does not necessarily result in the exclusion of your Intoxilyzer test results from being considered in any court proceeding.