Just because you were accused of Drunk Driving or Driving While Ability Impaired that doesn’t mean that you are guilty. Colorado has harsh penalties for alcohol related driving violations, so you owe it to yourself to hire an attorney who knows both the legal and scientific ways in which to defend these cases.

DUI and DWAI are the only crimes for which you can be convicted based on the result of a machine. However, those machines are nowhere near as reliable as the police and prosecutors would lead you to believe. To understand why, we first need to discuss the way in which your body breaks down alcohol.

A. Alcohol Chemistry

There are many types of alcohol including methanol, isopropyl and ethanol. The only kind of alcohol we are concerned with is ethanol. This is important, because the breath test machines have a difficult time separating ethanol from other similar chemicals. Ethanol’s chemical formula is CH3CH2OH. Once it enters your stomach and liver, the Ethanol reacts with an enzyme called alcohol dehydrogenase (NAD+) to produce acetaldehyde CH3CHO and a hydrogen ion.

CH3CH2OH + NAD+ → CH3CHO + NADH + H+

Here’s where it gets tricky. Not everyone has the exact same version of alcohol dehydrogenase. There are at least 5 different varieties of alcohol dehydrogenase depending on your genetics. Its activity varies between men and women, young and old, and according to your ethnic background. People with an active version of the enzyme have a higher tolerance than those with a less active version

B. Imprecise Analysis

The Police breathalyzers use infrared spectroscopy where they collect a breath sample and project an infrared beam of radiation through the captured breath in the sample chamber and detect the absorbance of the compound as a function of the wavelength of the beam, producing an absorbance spectrum that can be used to identify the compound, as the absorbance is due to the harmonic vibration and stretching of specific bonds in the molecule at specific wavelengths. The characteristic bond of alcohols in infrared is the O-H bond, which gives a strong absorbance at a short wavelength. The more light is absorbed by compounds containing the alcohol group, the less reaches the detector on the other side and the higher the reading.

In a laboratory, an infrared spectroscope would print out a graph showing the amount of light absorbed at the various wavelengths so that a scientist could interpret it. The police breathalyzers don’t do this. Rather, they rely on their computer software to make this determination. Recent studies have shown that there are approximately 200 different chemicals exhaled in human breath. These include acetone, ketones, alcohols, aldehydes and other chemicals with similar absorbance patterns to ethanol. The National Highway Safety Administration has found that dieters and diabetics have acetone levels hundreds or even thousands of times higher than other people. A Spanish study found that metered - dose inhalers used in asthma treatment can cause false positive readings. Any number of other products found in the environment or workplace can also cause erroneous BAC results. These include compounds found in lacquer, paint remover, celluloid, gasoline, and cleaning fluids, especially ethers, alcohols, and other volatile compounds.

Physiological Variables

Breathalyzer machines assume that everyone has the same ratio of alcohol in their breath to alcohol in their blood. This is called the “partition ratio”. The machines assume that everyone has a ratio of 2100:1. In other words, by measuring the amount of alcohol in the breath sample and multiplying by this ratio, the machine calculates the amount of alcohol in the 100ml of the person’s blood.

However, the partition ratio actually varies per person among individuals and even varies within one individual over time. It can be as low as 1300:1 or as high as 3100:1. A person with a true .07BAC with a 1500:1 partition ratio would have a breath test reading of .10BAC.

Studies suggest that about 1.8% of the population have a partition ratio below 2100. Thus, a machine using a 2100-to-1 ratio could actually under-report. As much as 14% of the population has a partition ratio above 2100, thus causing the machine to overestimate the blood alcohol concentration. Also, the machine assumes the 2100:1 ratio in every part of the breath.

Finally, the presence of other chemicals in the breath sample can affect the partition ratio. Mixtures of volatile compounds can be more volatile than their components which can create artificially high levels of ethanol or other vapors relative to the normal blood / breath equilibrium.

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Mouth Alcohol

One of the most common causes of falsely high BAC readings is the existence of alcohol in the subject’s mouth. The Breathalyzer’s computer assumes that the alcohol in the sample came from deep within the suspect’s lungs. However, alcohol may have come from the mouth, throat or stomach for a number of reasons.  These include recent drinking, burping, belching, or acid reflux disease. A small amount of mouth alcohol can make a large difference in the result of the test.

Also, things such as dentures and periodontal disease can trap alcohol in the mouth.

Finally, suspects sometimes try to cover the alcoholic beverage odor on their breath by using breath sprays or mouthwashes that also contain alcohol

Testing The Subject Too Early

When you drink alcohol it takes anywhere from 15 minutes to two hours for it to be fully absorbed by your body. Peak absorption occurs within an hour (although it can vary between 15 minutes to 2.5 hours). During this time, the alcohol will not be evenly distributed throughout your body and some parts of your body will have different blood alcohol concentrations than others. During peak absorption, the blood alcohol in your arteries can be as much as 60% higher than in your veins.

Software Errors

Since the Breathalyzer machines rely on computer software to make their calculations, programming and mechanical problems can affect their results. For instance if the subject is told to stop blowing too soon the machine may indicate a refusal.  In Colorado, a refusal can result in an automatic 1-year suspension of your driving privilege. Another problem is that the machine may indicate that a test is valid when it is not.

Radio Frequency Interference from other electrical equipment such as police radios, cell phones, air-conditioners, refrigerators, computer printers, florescent lights or almost anything else that is plugged in or uses a battery can interfere with the test results.

The machines can’t measure the volume of air blown by the suspect directly. Rather, use a pressure sensor and measure the amount of time that a given pressure is present. The machines make assumptions about how hard the suspect is blowing and compute the amount of air based on those assumptions. When those assumptions do not apply to all suspects the results are incorrect. According to some studies women’s samples are 20%-40% lower than men’s.

The suspect’s body temperature can affect the results. An increase if one degree centigrade can increase the breath alcohol test by 7.5%

Inherent Error

Colorado recognizes that there is a 1% operator error in using Breathalyzer machines. Also, the machines’ manufacturers indicate that the machines are accurate to within 3%.