Have you ever been pulled over and been given a breathalyzer test? Have you, in fact, not been drinking and yet somehow came close to being at New Jersey’s legal limit? There are so many things that can cause your Blood Alcohol Level (BAL) to rise or even hold a level when you haven’t even had one rink. There are often cases in which an unexpected substance causes a BAL to be higher than it should, or even could be!
An absolute BAL can only be obtained by drawing a blood sample. Of course, when you are pulled over for a DWI, drawing blood is not exactly practical. More often than not, police in New Jersey use the Alcotest, a handheld breathalyzer test, to determine how much you’ve had to drink.
The Law Offices of James A. Abate, LLC recently handled a case in New Jersey, in which our client had a BAL reading of 0.34. This is more than 4 times the legal limit, and is high enough to cause loss of bladder function, suppressed breathing and heart rate, unconsciousness, and even death! The client knew there was no way she had consumed that much alcohol. Unfortunately, when the Alcotest is administered, many times the officer does not take into account certain factors that differ in each individual – even though they are supposed to. In this case, the client wore dentures. The dentures are made up of material that, on its own, can alter the test. When you add in the adhesive used to keep the dentures in place, it possible for that the liquid from just one alcoholic beverage becomes trapped. Since the alcohol has not been digested, there is a chance that the Alcotest will pick up on the alcohol level of that drink, even though you finished it over an hour ago. The officer who administered the test did not ask our client to remove her dentures, and because of his mistake we had a win for our client.
As with dentures, having braces is another way for your BAL to test higher than it actually is. In a recent case out of Clinton, New Jersey, our client was using Invisalign braces to straighten her teeth. The Invisalign braces are made of plastic that fit over your teeth, and our client was not advised that she needed to remove them. Again in this case, liquid was trapped causing the test to give a reading that was a 0.24 BAL – three times the limit. The Alcotest results were deemed inadmissible, and the case against our client was dismissed.
Did you know that a person’s health may be at work giving you a naturally higher BAL then someone else? In New Jersey, the legal limit is a 0.08 BAL. Having diabetes is proven to start a person off with a 0.03 BAL. Already you are more than 1/3 the legal limit without doing more than existing. Women over the age of 60 tend to lack the lung capacity to blow the 1.5 liters of air needed for an optimal test, often causing inaccurate Alcotest results. In fact, being a 120 lb. woman will cause your BAL to be higher than that of a 120 lb. man just because women have more body fat, which absorbs alcohol very slowly, leaving more for the rest of your body. After having just two drinks, the man’s BAL will generally register at 0.07, while the woman’s will generally register at 0.08, making her legally drunk!
Some breath alcohol testers, particularly infrared breath testers, detect any compound containing the methyl group structure as we as ethyl alcohol (or ethanol), the alcohol found in alcohol beverages. 70-80 compounds with the methyl group structure can be found in the human breath at any one time and will be incorrectly detected as ethyl alcohol.
Compounds in the methyl group include:
Breathalyzers which detect a greater number of types of ethyl substances will produce a higher false blood alcohol reading than those which are designed to test a specifically smaller group of substances due to the cumulative effect when the breathalyzer adds all of the compounds together.
So many things interfere with these readings – in fact, your cell phone and the police radio can give out the ability for a false reading. Breathalyzers are sensitive to temperature and if not adjusted or recalibrated to account for ambient or surrounding air temperatures, the results will be inaccurate. Even your own body temperature can change the reading by up to 8%. If you have a virus/fever it could cause a reading or higher than it should have been.
Breath analyzers only estimate blood alcohol concentration (BAC). They do not provide actual blood alcohol concentration results. Different types of breathalyzers use different methods to estimate alcohol concentration which can produce varying results depending upon factors of the person being tested. Larger analyzers are more accurate than smaller handheld models like the Alcotest. Although New Jersey does use the Alcotest, there are some states that do not permit readings obtained from handheld breath analyzers to be admitted as evidence in court. It has been reported that results of estimated BAC from breath test readings vary as much as 15% from the true BAC, and that approximately 23% of people tested with a breathalyzer will show estimated BAC to be higher than the true BAC. A blood test showing actual BAC is the only surefire way to back up a positive obtained from using a breathalyzer.
Lawyers in New Jersey have been going to bat against the Alcotest for many years, If some states have already take the steps to remove these tests from being allowed why not New Jersey? It is an on-going debate that doesn’t look as if it will be resolved any time soon.
If you live in the State of New Jersey and have been hit with a DUI or DWI, it is suggested that you hire an experienced attorney, one that has seen and dealt with many different cases where the numbers have been thrown out due to inaccuracy. The Law Offices of James A. Abate, LLC can help you get the fair trial to which you are entitled, and give you a chance to live without this hanging over your head for the rest of your life.
Get your questions answered – call me for your free, 20 min phone consultation (908) 210-9755