When Breath Test Machines Get It Wrong


By: Will Nesbitt

Sam recently graduated from OSU with a degree in biology. He graduated with a perfect 4.0 grade point average with aspirations of attending medical school and becoming a heart surgeon. Sam was also a devout Hindu that would often fast without food for days. A side effect of this fasting is his body would naturally produce acetone like many diabetics. Many breathalyzers used by the State of Ohio are not equipped with an additional "filter" to distinguish between acetone and ethyl alcohol. This produces a falsely elevated alcohol level in one's breath sample.

Last May, Sam decided to join some classmates at a local watering hole on a Saturday night. He consumed two rum and cokes over a period of four hours. These were standard drinks served in rocks classes with approximately 1 ½ ounces of rum in each. A forensic toxicologist estimated his breath alcohol should have measured around 0.02% grams per 210L of breath, well below the .08 state limit. However, on this night the machine got in wrong.

Sam was arrested and taken into custody after being stopped for a speeding violation. Sam thought he had little to worry about and eagerly agreed to take a breathalyzer when asked by the arresting officer. He was shocked when the officer informed him that he just tested a .203! Sam insisted that this was an error. Unfortunately, the State of Ohio only requires the government to test once and Sam wasn't given the opportunity to test again. Now Sam was facing 6 days in jail and a license suspension that would require yellow plates.

When Sam contacted our firm we retained a respected forensic toxicologist to take a look at Sam's case. We had Sam fast for 36 hours before going to the toxicologist's lab. Sam provided us with several samples of blood throughout a 3 hour period while drinking moderate amounts of alcohol. Sam blew into two separate breathalyzers. One machine had an addition filter to detect acetone and rarely produced a "valid" sample. Most of the time, it detected "interference" and printed an invalid sample ticket. The other breathalyzer, without the additional filter, never produced an invalid sample and always indicated that the sample was valid. We began to believe then, that Sam was in fact producing acetone naturally in his body. We waited a few weeks for the blood work and were relieved to find the presence of acetone in Sam's blood. The .203 test now made complete since. The machine was mistakenly measuring acetone as well as the trace amounts of ethyl alcohol!

With this new information in our hands we headed back to court. Shortly before starting the hearing, Sam was offered and accepted an offer to plead guilty to Reckless Operation, a minor traffic offense.