One of the stranger parts of being a DUI lawyer is dealing with people’s misconceptions about breathalyzers. There is a popular understanding of breath testing equipment. People seem to think that a breathalyzer is some sort of all-seeing infallible magic box, and this is a problem when it comes to wrapping your mind around the facts in a DUI case.
From the perspective of the general public, the police and politicians, DUI breathalyzers are magic boxes that can measure and report a person’s blood alcohol concentration. There are very few apparent inputs aside from subject identification and the actual sample of breath. The printer spits out the results. The operator signs off. That’s it. The magic box has spoken.
Of course, companies that manufacture breathalyzers want you, me and particularly government decision-makers to believe the myth. It’s in their interest to perpetuate the belief that the breathalyzer is some unquestionable machine that can tell you a person’s blood-alcohol concentration. After all, their entire business is premised on selling and servicing DUI breathalyzers.
A lot of consideration goes into marketing breathalyzers. One particular consideration is that the breathalyzer looks like a breathalyzer. There are a million ways you could configure them, but to sell the device you need to make it look like a breathalyzer because someone in the government will certainly feel better about writing a cheque for something that looks like they expect it to look.
The ones in the police station, what’s called an Approved Instrument, are designed to look like a computer. They even paint the aluminum case the white/cream/beige colour that was common for computers in the 1990s. They don’t do that by accident. It’s smart marketing.
The people who are writing cheques for the RCMP look at them and they appear to be a time-tested business machine. The colour reminds them of a more simple computer – so simple a police officer can use it.
What’s inside the box? Can it tell me a person’s blood-alcohol concentration?
The specific breathalyzer we use currently in British Columbia and Yukon is the Intoximeters Intox EC/IR II. This breathalyzer is the one the police use when they investigate a person for drunk driving and they intend to charge the driver with having a prohibited blood-alcohol concentration after operating a conveyance, (i.e. being at or over .08 after driving).
The driver blows into it at least twice and if the readings are within .02 apart, then it’s presumed that the readings are the blood-alcohol concentration of the driver. But is it?
Breathalyzers don’t test your blood. Your blood is never tested. The assumption is that you will exhale a certain approximated amount of alcohol in your breath and the breathalyzer can analyze the breath to make an estimation of alcohol in your blood. But it is never your blood-alcohol concentration and, at best, it’s merely within a range. It could be out significantly depending on testing conditions and the physiological condition of the person blowing.
Inside the box are pipes that direct the breath nearby a sensor. The breath that you start to blow may have a very different breath-alcohol concentration than a few seconds in and again it may be different yet further on. Which one comes close to actually depicting blood-alcohol concentration is something of a debate.
The Intox EC/IR II just grabs a very tiny volume of air to test from the pipe when you start to run out of breath. The older machines tested the breath all the way through to ensure the integrity of the sample. The newer one doesn’t do that (but it’s still in a white/cream/beige box which makes it look like something familiar).
The actual testing sensor is called a fuel cell. The sensor they use in the Intox EC/IR II is an old one repurposed from a handheld roadside breathalyzer.
Basically, they put a roadside breathalyzer in a big box. The sensor is called a fuel cell because it uses the alcohol to make a little battery and then destroys the alcohol to produce an electrical current. The electrical current is interpreted by the software and it makes a projection of the breath-alcohol concentration (not the blood-alcohol concentration).
When two tests have been done it prints a breath ticket just like those old novelty machines that tell your fortune. The difference is the readings from the breathalyzer are designed to look official so the police and prosecutors feel confident of what they have, and the judge will believe that it’s a true reflection of the breath evidence. Also, the more official it looks, the more likely that you and your lawyer will trust the magic box over your own knowledge of what you had to drink.
Sadly, the printout generated by the breathalyzer has become almost unquestionable in Canadian law. In 2008 under the Harper government, they wrote in the law that you can’t question it. Then in 2018, under then Justice Minister Jody Wilson-Raybould, the government eliminated your right to even get the maintenance records to show if the breathalyzer you blew into had a history of malfunctions.
It seems that the people who write the laws can’t get beyond their faith in the machine. They don’t want to know how it works. They don’t want to know what goes on inside the breathalyzer because that might shake their faith in the magic box.
We know what’s in the box
If you have a DUI case in British Columbia or the Yukon, give us a call.
We own about a dozen Intox EC/IR II breathalyzers (they cost around $10,000 each new). We’ve taken them apart and we consult with experts on them. We even give them away to breathalyzer experts so they can investigate them. We know what’s inside the magic box and we may use our unique knowledge to expose the problems with breath testing in your case.