Burp v. Breathalyzer: Kentucky Supreme Court to decide issue in DUI case

[Roland99]

Source: Louisville Courier-Journal

When tested later at the Jefferson County jail, Howlett blew a 0.15 — nearly twice the level at which drivers are presumed intoxicated in Kentucky. But before the test, Howlett later testified, he had burped.

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But the manual for the Intoxilyzer 5000EN machine used in Kentucky says the operator must observe the suspect for 20 minutes before giving the test to ensure he avoids “oral or nasal intake of substances which will affect the test.”

If the subject “regurgitates,” the manual says, the operator should delay the breath test for an additional 20 minutes. The idea is to ensure that any residual alcohol in the mouth has dissipated, so the machine measures only the alcohol exhaled from the lungs.

Jefferson District Judge Donald Armstrong Jr. tried the case without a jury Jan. 26, (the trial was delayed for several years because of unrelated litigation over the Intoxilyzer) then thought about it overnight. He returned the next day and said he had a problem:

Read more: http://www.courier-journal.com/article/20100913/NEWS01/309060007/Burp+v+Breathalyzer++Kentucky+Supreme+Court+to+decide+issue+in+DUI+case

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Could have impact in courts across the country.

[mjane]

1. Considering that the breathalyzer

requires several seconds of air to be exhaled BEFORE it sends a sample into the chamber, I'm not sure a burp could affect the results.

It is designed to test alveolar lung air, and not mouth alcohol, and this is how it is achieved.

In my state, anybody arrested for DUI who takes a breath test, by law must be offered the chance to get a blood sample taken as well, from a dr/hospital of THEIR choice. If one wasn't impaired, iow one would know one wasn't a .15 and would of course (if you had a brain) seek a blood test to refute that result.

Iow, the device and the process has more built in ways to protect the innocent than any other type of crime. If a witness lies, and they are the only witness - you are somewhat screwed. If the breathalyzer "lies" (and it's obscenely accurate, but assuming arguendo it was somehow inaccurate), you still have the right (at least in my state) to get a blood test of YOUR choosing to refute the state's evidence.