Depending on how they are used, self-administered breath tests may be valuable

Charlotte DWI and Criminal Defense Attorney J. Bradley Smith of Arnold & Smith, PLLC answers the question “Are breath test results always accurate?”

New, portable breath-testing machines sold by Breathometer, Inc. and other companies are making waves in the public marketplace, particularly among college-aged and twenty-something adults. Users of the device in North Carolina should beware: it will probably not help you if you are pulled over for drunk driving.

What is it?

In plain terms, the Breathometer and the newer “Breeze” products are portable, handheld devices that people can use to test their own breath-alcohol content. Entrepreneur Charles Michael Yim founded Breathometer, Inc. in 2012 in order “to build the world’s first portable breath analysis platform to help people make smarter decisions, improve healthcare and save lives.”

The original Breathometer machine plugged directly into the audio jack of a smartphone. The latest “Breeze” product works in a similar fashion, using “a next-generation electrochemical fuel cell sensor[.]” It is an “FDA registered, law-enforcement grade product,” according to Breathometer, Inc.

The device utilizes a coin-cell battery with a shelf life of about a year-and-a-half. A mouthpiece cover fits over a “Breeze” mouthpiece, which is affixed to a user’s smartphone. Users are instructed to wait twenty minutes after consuming a drink, then to blow into the “Breeze.” Users are encouraged to blow for five seconds, after which time the device will register “an accurate BAC,” or blood-alcohol content.

The Breathometer and “Breeze” are compatible with most iPhones, newer iPod devices, as well as some Android devices offered by Samsung and Nexus.

Law-enforcement officers likely to be unimpressed

Using the Breathometer or “Breeze” may assist a person in deciding not to drive.

Potential problems may arise if a person develops the belief that it will be okay to drive based on a Breathometer or “Breeze” result that is below the applicable “impaired-driving” threshold. In North Carolina, that threshold is .08. Persons whose blood-alcohol content is .08 or greater are presumed to be impaired for impaired-driving purposes.

The word “presumed” is the key. A person whose BAC is .08 or greater can rebut the presumption of impairment by demonstrating that, despite the BAC reading, one was not impaired. Similarly, if a law-enforcement officer believes a person was driving-while-impaired, the case against an accused driver may be proven by other evidence of impairment, even if a driver’s BAC was below .08.

The bottom line is that in contested driving-while-impaired cases, many circumstances such as a driver’s conduct on the road, one’s appearance, the odor of alcohol, one’s performance on roadside sobriety tests and a host of other factors may serve as evidence of impairment or sobriety. The BAC is just one piece of evidence used to demonstrate impairment.

In addition, even among devices that are—for all intents and purposes—exactly the same, a person may derive different readings depending on the altitude and environmental conditions where a test is conducted. These factors can slightly skew the result, meaning a person who self-administers the “Breeze” or Breathometer and registers a .07 may feel a false sense of security.

Finally, people are different in size, character and in the manner in which alcohol affects them. What .08 BAC may mean in terms of its effects on one person may be dramatically different from the effects such an amount of alcohol may engender in another person. The key is to avoid thinking about DUI / DWI cases in a one-size-fits-all manner, because every case is different.

In any case, if a law-enforcement officer develops the suspicion—based on your driving—that you are impaired, do you really think he is going to let you go because, as you tell him, your Breathometer only registered a .07?

Arnold & Smith, PLLC is a Charlotte based criminal defense, traffic violation defense and civil litigation law firm servicing Charlotte and the surrounding area. If you or someone you know need legal assistance, please contact Arnold & Smith, PLLC today at (704) 370-2828 or find additional resources here.

About the Author

Brad Smith is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of criminal defense, DUI / DWI defense and traffic defense.