In Arkansas, scores of drivers are arrested every year for driving under the influence simply because they failed to pass a breathalyzer test by a fraction of a percent. The law makes no exceptions for this: you are either “over” or “under” the blood alcohol limit, and the consequences can be severe.
But… are breathalyzer devices trustworthy? Can a DUI defense lawyer help you avoid a DUI conviction – even after failing a breathalyzer exam?
Many people still do not understand that breathalyzer devices are often wrong, and breathalyzers can provide inaccurate readings for all kinds of reasons.
What’s the first thing you must do if you are arrested for a DUI?
If you’re arrested and charged with DUI in Arkansas because of a breathalyzer test result, put your case in the hands of an experienced Arkansas DUI attorney – immediately.
If you’ve ever been stopped for suspicion of DUI, you’ve probably been asked to “blow” into a breathalyzer device. But what – precisely – does a breathalyzer measure?
Are you required to “blow” into a breathalyzer if a police officer asks you to? What are your rights if you’re suspected of DUI? And are breathalyzers really an effective deterrent to impaired driving?
Let’s look at some answers.
How are breathalyzers supposed to work?
Breathalyzers are supposed to measure the amount of alcohol molecules in your breath. How is that done?
Alcohol molecules move directly from the stomach to the bloodstream without any chemical change, so as that blood moves through the lungs, some of that alcohol is absorbed into your breath and exhaled. That’s why you can smell alcohol on someone’s breath long after they have finished a drink.
A breathalyzer is supposed to measure the percentage of alcohol molecules in your breath and then determine how much alcohol has to be in your bloodstream to produce that percentage of alcohol in your breath.
What kinds of breathalyzers do police officers use?
Several types of breathalyzers are currently used by law enforcement agencies in Arkansas:
1. Semiconductor sensor breathalyzers often return false positives because they also detect ketones – bi-products of the digestive process – that are chemically comparable to alcohol. These are used in the field, and the results from these alone are generally inadmissible in court.
2. Platinum fuel-cell breathalyzers aren’t infallible, but they are alcohol-specific, so they are considered more trustworthy than semiconductor sensor devices. The results from these field units alone are also generally inadmissible in court.
3. Infrared spectronomy breathalyzers are the larger and more sophisticated units typically located at police stations and precincts. These evidentiary breathalyzers, known in Arkansas by the name Intoximeter EC/IR II, are used at booking and presumed to give the most precise readings, the readings that will be used as evidence against a DUI defendant.
Do breathalyzers present other difficulties?
All infrared spectronomy breathalyzers must be maintained routinely with at least 1 certified inspection and calibration every 3 months. Even then, some devices pick up radio frequency interference (RFI), electronic interference that the police themselves can create with their walkie-talkies and two-way radios. RFI can lead to false positive test results.
When a breathalyzer works properly, it remains imperative for a test to be conducted properly. Police personnel must be trained to conduct breathalyzer tests according to a precise, standardized set of guidelines. If an officer does not follow the procedures precisely, the test results could be wrong.
A different difficulty with breathalyzers is only now starting to be understood. If anything causes an airbag to deploy before a motorist takes a breathalyzer test, the airbag may release chemicals into the motorist’s lungs that will make the test result inaccurate.
The main problem with breathalyzers is that they are designed with the assumption every human body is the same all the time. This flies in the face of medical science. They do not take into account statistical variations in human physiology, including variations in the human blood stream that can result from medical conditions such as diabetes and anemia.
In fact, we are all very different from one another in ways that are critical to such testing, and even our own bodies are physiologically different from one moment to the next. Each of us, for example, has a different ratio of alcohol in our breath compared to alcohol in our blood (blood-breath partition ratio), and this ratio can differ within us from hour to hour by a 5% deviation.
This is critical, as the breathalyzer will automatically compute the amount of alcohol in the blood based upon the measured alcohol on the breath using a uniform ratio that falsely assumes we are all the same all the time.
Which DUI tests are most accurate?
Blood tests remain the most accurate method of measuring someone’s BAC (blood alcohol content) level – provided the proper procedures are adhered to for testing and handling the blood samples.
In Arkansas, the portable field breathalyzers used by police officers cannot be used as evidence against you. That’s why most DUI suspects are asked to “blow” a second time, after being arrested, using an infrared spectronomy breathalyzer back at the station.
The hand-held, portable breathalyzers carried by police officers are used only to determine if probable cause exists to arrest you for suspicion of DUI.
Are you required to submit to a DUI portable breathalyzer test?
It’s also why, for most drivers in most situations in Arkansas, you cannot be compelled to submit to a field sobriety test or portable breathalyzer test – if you have not been placed under arrest.
Thus, drivers who are stopped in traffic for suspicion of DUI may decline – politely – any DUI test.
However, once you are arrested for DUI, Arkansas law requires you to submit to either a blood, breath, or urine test after – and not before – you have been taken into custody.
Also, if you’re 18 years old or younger, or if you’re serving probation because of a prior DUI conviction, state law requires you to take a breathalyzer exam if a police officer requests it.
What happens if you refuse a DUI chemical test?
Although you have the “right” to refuse any test, it may constitute the separate violation of “Refusal” once you are under arrest. However, a refusal to take a portable breath test (PBT) does not constitute the crime of Refusal – no matter what an officer may try to tell you.
Arkansas has an “implied consent law” that states that if you drive, you have “impliedly consented” to take a breathalyzer or another chemical test, such as blood or urine. This refers ONLY to an evidentiary breathalyzer.
Although an officer cannot physically force you to take a breathalyzer or other chemical test (except with a search warrant issued by a judge), if you do so, you will be charged with a Refusal to Submit to a Chemical Test under Arkansas Code § 5-65-205.
The penalties for refusing to take a breath, blood, or urine test – after you’ve been arrested for DUI – begin with a 180 day suspension of your driver’s license. If it’s your second refusal to test, you’ll probably have a two-year driver’s license suspension imposed.
If you choose to submit to the chemical test, you have the constitutional right to preserve evidence in your own defense. You may request independent lab testing of a blood or urine sample at your own expense, though the police do not have to tell you about this. Depending on the circumstances, it may be prudent to go ahead and do so.
How will breathalyzers be used in the future?
An ignition interlock device or “IID” is essentially a breathalyzer connected a vehicle’s ignition. It prevents you from starting the vehicle unless you blow into the device and prove that you are not impaired. These are often a requirement for DUI offenders as a condition of reinstating their driving privileges.
Driving under the influence of marijuana carries the same penalties in Arkansas as driving under the influence of alcohol, but detecting THC (tetrahydrocannabinol, the active ingredient in marijuana) in the bloodstream is both difficult and controversial.
However, with many states now approving the medicinal or recreational use of marijuana, a number of companies are rushing to develop a reliable marijuana breathalyzer, and such a device may become available to Arkansas police agencies very soon.
What’s the DUI Law in Arkansas?
The law in this state presumes that a blood alcohol content (BAC) level measuring at 0.08 percent or higher means that a motorist is driving under the influence, if you are old enough to legally drink. That limit drops to 0.02 percent for motorist under the age of 21.
The problem is that some drivers who register over-the-limit blood alcohol content levels haven’t even had any alcohol!
Anyone with conditions such as gastro-esophageal reflux disease (GERD), hypoglycemia, diabetes, or a rare medical condition called “auto-brewery syndrome” might be charged with DUI for failing a breathalyzer test.
Over-ripe fruits, pecans, energy drinks, protein bars, and a variety of other food items will also return a positive reading for alcohol. Colognes, perfumes, and breath fresheners can also be responsible for false breathalyzer readings.
What can happen if you are convicted of a DUI?
“Don’t Drink and Drive” is good advice. But if that advice fails you, and you are accused of DUI anyway, you must get the legal help that you need – immediately. DUI penalties are harsh in Arkansas. Though first offenses are considered a misdemeanor, they are still punishable by a $1,000 fine and up to 1 year in jail. A conviction can place you at risk of losing your job and therefore things like your credit rating, your home, your car, and more.
Don’t take any chances. If you are accused of driving under the influence in Northwest Arkansas, reach out at once to a skilled DUI attorney, and get the legal advice and representation that you will very much need. Your future will depend on it.