Written by attorney Rosanne Faul

Alcohol Breath Devices In Bars and Restaurants

Driving Under the Influence (DUI) is a big issue in Irvine, Orange County, California and across the United States, but would the use of breath alcohol devices in restaurants and bars make this country a safer place?

The problems with using a breath device to eliminate drivers from driving with a .08 percent or greater of alcohol in their bloodstream has to do with how alcohol is absorbed by the body into the bloodstream along with the breath device itself.

The breath device used by law enforcement in Orange County, regardless if you are in Newport Beach, Santa Ana or any other city, is manufactured by Intoximeters and called the AlcoSensor IV XL. This device requires that the person taking the test must provide 1.5 liters of deep lung air, which is the air that is closest to the center of the body. If the person has just had their last drink or is having any ingestion problems (burping or suffers from Gastroesophageal reflux disease- GERD), they may still have traces of alcohol trapped in their oral cavity or alcohol that is escaping from their stomach up into their mouth. This is problematic, because instead of the breath device reading an alcohol level from the deep lungs, it is reading alcohol from the mouth or stomach, which does not correlate to the actual alcohol level in the blood.

The breath devices used by Orange County law enforcement agencies also require that the person be observed continuously for fifteen minutes to verify that they have not burped, regurgitated, vomited or ingested anything prior to the administration of the breath test. However, if the person is suffering from any of the above at the time of the breath test, which may be unobservable, the test results will not record true values. In trying to obtain an accurate reading at restaurants and bars someone would need to administer the test to verify that the fifteen-minute observation period was actually followed.

Another issue concerns the drinking pattern, timing of the breath test and timing of the driving. How the body absorbs alcohol is important in understanding why a breath alcohol test at restaurants and bars may not solve the issue of illegally drinking and driving. When a person drinks alcohol, the alcohol does not go directly into the blood steam where it then affects the mental (judgment, divided attention skills) and eventually the physical (slurred speech, unsteady gait) attributes of the person. Before alcohol is absorbed into the blood, it must first go through the stomach and intestines. The timing of this is affected by how quickly or slowly one drinks alcohol and what has been eaten along with other factors. At some point a person stops drinking alcohol, but most likely alcohol will still be in the stomach that has not reached the blood stream. During the time of drinking and for some time after, the blood alcohol level will rise. How long it will rise is difficult to tell, because of the various factors involved. However, at a certain point the alcohol being absorbed into the blood will become equal with the alcohol being eliminated through the liver and a plateau will be reached where the blood alcohol level will remain constant. When most of the alcohol has been absorbed and only elimination through the liver is taking place, the person’s blood alcohol level will drop. Alcohol eliminates in the typical person at an average rate of .015 – .02 per hour and during this phase the person’s blood alcohol level decreases at this rate. Depending on how high the blood alcohol was at the peak will dictate how long the person will eliminate alcohol. This process may be charted on a Blood Alcohol Curve.

The reason why alcohol absorption is important is two-fold. If a person gives a breath test that results in a .05, that does not mean that twenty minutes down the road, the person will not be at a higher level such as a .08 or greater. It all depends on what phase on the Blood Alcohol Curve the person is in at the time of the breath test. In order to verify where the person is (absorption – rise, plateau – highest level or elimination – decrease), several tests would need to be administered over a substantial period of time and a person wanting to go home probably would not want to wait for multiple tests to take place in order to verify they were on the decreasing side of the curve.

The reading that a breath device gives also has various issues that may cause a person to believe that they are below a .08 when they are really not. The most obvious issue is the maintenance and calibration of this device. The code of regulations and the manufacturers guidelines of the AlcoSensor IV XL require that the breath device be given an accuracy check every ten days using a known standard (not a person, but coming from a wet or dry gas). When the breath device is off by more than .02, the device must be recalibrated. Of course, if the device is off by less than the .02, the administrator of the device may choose to recalibrate it to make the result a truer value depending on the policy of the agency. Just this discrepancy alone causes an issue, because if the device is off by .01 and the person blows a .07, not knowing that the device is off, they may believe they are safe to drive.

The problem with the AlcoSensor IV XL or a breath device from Brookstone or any other store, is that unless there is a way to check the device for accuracy and it is done on a regular basis in a proscribed manner, the results given have little worth. So all breath devices in restaurants and bars must be maintained as required or the results given from the breath device may be inaccurate.

Another problem with the breath device has to do with the conversion of the breath alcohol (result from a breath device) to the true value of the alcohol in the blood. If the person’s blood alcohol level is rising at the time of the breath test, the breath result actually overestimating the blood alcohol level. Instead of being at a .09 as is the result given by the breath device, the person could actually be at a .07. If the person’s blood alcohol level is decreasing at the time of the test, the breath device will underestimate the true blood alcohol level. A breath device reading at a .07 could actually be at a .09. This occurs, because when the blood alcohol level is changing in either direction (going up or going down) the circulatory process lags behind and the breath alcohol results (coming from the deep lung air) are not as accurate as a blood draw. Therefore, a breath device will only give the true value if the person is on the plateau where the absorption of alcohol is equal to the elimination of alcohol.

These are only a few issues with relying on breath testing devices at restaurants and bars. The bottom line – it would be very difficult to prevent a person from driving with a .08 or greater using breath devices, because either the device is not reading the person’s true blood alcohol level, or the level would change in the amount of time it would take to get from point A to point B.

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