There are a whole lot of ways to get a breath test thrown out or to demonstrate that there is reasonable doubt about an alleged breath test result. Here are the Top 10, actually make it 12, not necessarily in any order of importance:
1. Observation Period: The required “Protocol” for Kansas breath tests mandates that the officer “keep the subject in (his) immediate presence and deprive the subject of alcohol for 20 minutes preceding the breath test”. This is sometimes called the “observation period”. The officer must generally keep an eye on the person to be tested for 20 minutes prior to the breath test to make sure he or she does not eat, drink, burp, belch, regurgitate, smoke, chew gum, etc.
2. Calibration Out of Tolerance: Each time a test is run on an Intoxilyzer machine in Kansas the machine must draw air in from a jar of solution next to the machine and test it. The air in the jar is supposed to test at a .080 to demonstrate that the machine is calibrated properly. However, Kansas allows a tolerance range of between .070 to .089 as acceptable. If the result falls outside of this range, the test is not reliable or admissible.
3. Failure to Properly give Implied Consent Advisories: Prior to every breath test, the person to be tested must be given oral and written notice of the Implied Consent Advisories. This is a list of information concerning the ramifications of refusing or failing a breath test. If the officer fails to give oral AND written notice, or if he doesn’t read them in substantial compliance with the written version, the breath test is not admissible.
4. Advice Outside of the Implied Consent Advisories: If the officer gives information above and beyond what is contained in the Implied Consent Advisories, and especially if the information is false or misleading as to the ramifications of refusing or failing a breath test, the breath test may be thrown out.
5. Denial of Independent Test: Kansas law provides that after a person has submitted to the test of the officer’s choice (breath, blood or urine) he or she has the right to obtain an independent test, which generally means a blood test from a doctor or hospital of the person’s choosing. If the officer fails to allow the indpendent test, or somehow impedes the person from getting one, the breath test is not admissible.
6. Failure to Prove the Certification of the Machine or Operator: Both the breath test machine and the officer must be certified to perform breath tests by the Kansas Department of Health and Environment. If either one is not so certified, or the prosecution fails to prove the certifications at trial (by having the actual documents in court), the test is not admissible.
7. Failure to Test the Calibration Solution Weekly: The Kansas Department of Health and Environment requires that the soution used to check the calibration of the machine be tested two times each week to determine whether the machine is functioning properly. Sometimes the law enforcement agency fails to conduct the tests, or allows more than a calendar week to pass between the tests. If so, the test should not be admissible. The only way to know if the agency is conducting these tests is to obtain copies of the machine logbooks and a document called a “Monthly Certified Standard Report”.
8. Failure to Change the Solution: The Kansas Department of Health and Environment also requires that the solution used to check the machine’s calibration be changed every 10 days or 14 tests. If the agency fails to change the solution on these bases, the test should not be admissible. Again, you have to pull the records for the machine.
9. Failure to Report the Weekly Tests to the KDHE: In addition to changing the solution and running weekly tests on the machine using the external standard solution, the results of the weekly tests must be reported to the Kansas Department of Health and Environment every month on a form known as a “Monthly Certified Standard Report”. Failure to comply with that requirement will may result in the test results during that period being inadmissible and/or the machine losing its certification.
10. Foreign Object in the Mouth: Officers should look inside a test subject’s mouth prior to the breath test to make sure there are no foreign objects inside of it that could interfere with a breath test. The idea that a penny in the mouth will throw off the machine is an urban legend, but foreign objects like tobacco, retainers, false teeth, peircings or anything else unnatural in the mouth may make a breath test inadmissible or render it unreliable, especially if it is the type of object that can trap or retain alcohol.
11. GERD: Gastroesophageal Reflux Disease, also known as Acid Reflux, can cause a false high test on the machine. Basically, a person that suffers from GERD regularly regurgitates stomach contents into his or her esophagus and/or oral cavity. If this happens in the 20 minutes prior to the breath test it can cause an unreliable result in which a judge or jury may have reasonable doubt. Persons that suffer from this common condition should make sure that their lawyer is aware of this defense.
12. RFI: Radio Frequency Interference is radio waves coming from devices like police radios, cell phones, garage openers, etc. These radio signals can cause false high results on the Intoxilyzer. The Intoxilyzer uses RFI technology from the 1980’s. This was a time before cell phones. There has been almost no clinical testing of the RFI detector on these machines given not only the ubiquity of cell phones now, but also the fact that devices that can cause RFI now operate at a much high level than back in the day. For instance, your home cordless phone probably operates at between 3 and 5 gigahertz. The Intoxilyzer RFI detector is no use at these levels.
There are literally hundreds of ways to defeat or cast doubt on a breath test. The foregoing examples are only a few of the possible ways. However, knocking a breath test out takes a lot of skill and knowledge, not only of the science behind infrared breath testing, but the rules of evidence specific to DUI cases, and the extensive body of caselawconcerning these forensic tests. This is no task for rookies or dilletantes. If you have a case involving a breath, blood or urine test you need the best, most experienced Kansas DUI lawyer you can find.