Flashing red lights in the rearview mirror when you have been drinking can induce panic for many Kansas drivers. Many people become resigned to the idea that they will be arrested and convicted of DUI. Many Kansas drivers pulled over for DUI may never have had any experience dealing with the criminal court system. Some drivers presume that a DUI arrest and failed field sobriety tests and breath tests mean that a conviction is inevitable. This misguided but understandable misconception is promoted by the belief that field sobriety test and breath test results are based on reliable science. As a practical matter, breath test results may be inaccurate for a wide variety of reasons.
There are many issues that may interfere with accurate breath tests including the inability of the device to distinguish between alcohol and other substances. The device cannot reliably distinguish alcohol from other chemical substances like acetone or ketones. A diabetic or someone on a low-carb diet will typically have elevated levels of these chemical substances which can result in inaccurate breath alcohol test results. It is important to remember that it is not illegal to consume alcohol and drive in Kansas, but is illegal to drive while your driving ability is impaired by alcohol or with a blood alcohol concentration (BAC) above .08. This means that if you are a diabetic or have high levels of ketones because you are on a low-carb diet these factors can have you test over .08 percent BAC even though you really have a lower BAC.
There are other problems that can result in unreliable BAC test results including the mathematical formula used to convert alcohol in breath to the volume of alcohol in blood. It is important to know that a breath test machine does not directly measure the alcohol in one’s blood. The breath testing device uses a mathematical ratio called the partition ratio to convert the volume of alcohol in one’s breath in the deep lungs (alveolar breath) to the corresponding level of alcohol in one’s blood. This ratio is usually calculated at 2100:1 blood to breath ratio. However, this ratio can be inaccurate for a number of reasons including that a person’s body temperature is inflated due to illness.
Another common problem that may result in unreliable breath test results is the presence of mouth alcohol. The breath test device is supposed to measure the concentration of alcohol in breath that has been metabolized. Alcohol that remains in a person’s mouth will not have been metabolized and may result in abnormally high test results. Breath alcohol may be a problem either because you have very recently consumed an alcoholic beverage or because you used mouthwash that contains alcohol. This is why officers are supposed to allow for an observation period before administering a breath test. If the officer fails to properly observe this waiting period, the test results may be subject to challenge. Even if the officer observes the waiting period, factors such as vomiting or belching can make mouth alcohol an issue potentially compromising breath test results.
These potential flaws in breath testing represent only a few grounds upon which an experienced Kansas DUI attorney may be able to challenge breath test results in your case. Other potential issues include:
- The breath sample did not come from the deep lungs (alveolar breath)
- The test was not administered properly or the machine was not properly calibrated or cleaned
- Radio frequency interference (FRI) caused by the police cruiser radio
- Environmental exposure to vapors like paint or varnish
The fundamental point to keep in mind is that there are many basis that an experienced Kansas DUI attorney may use effectively to challenge breath test results. DUI offenses are treated very seriously in Kansas and can result in severe penalties. It is important to seek legal advice as soon as possible following a DUI arrests.
Our Wichita DUI defense attorneys at Cummings and Cummings have helped many people in Sedgwick County and south-central Kansas charged with DUI offenses. We have over 30 years of combined litigation experience so contact us today at 316-264-1548 to learn about your rights and options.