Edward L. Fiandach, BridgeTower Media Newswires
I read with great interest the thorough and well-researched piece appearing in the New York Times on Sunday, Nov. 3, regarding DWI breath testing and recent challenges concerning software and mechanical issues. Without question, these issues are critical, however, I believe that comment is necessary concerning the primary foundational issue that underlies all forms of breath testing.
As I recently set forth in a series of lectures I did across New York State on evidentiary breath testing for the New York State Bar Association, all forms of breath testing are fundamentally flawed. The problem lies in the basic scientific principle that underlies each and every alcohol breath test that has ever been given: Henry’s Law.
In a nutshell, Henry’s Law states that if a solution containing a volatile substance, such as alcohol, is placed in a closed environment, such as a sealed beaker containing an airspace above the liquid, molecules from the volatile substance will migrate from the liquid into the airspace, more properly known as the head space. Over time, as one molecule leaves the liquid and enters the head space, another will migrate from the head space into the liquid. Eventually, an equilibrium will develop and produce a fixed ratio whereby one is theoretically able to determine the concentration of the volatile substance in the liquid by multiplying the result obtained in the head space by that ratio. So much is so good, however, Henry’s Law is beyond question if, and only if, three parameters are met. First, the system tested must be a closed system. Second, the system must remain at a constant temperature. Third, the system must remain at a constant pressure.
Clearly, and without question, none of these essentials can be found in evidential breath testing. Since we must inhale and exhale, the subject tested never represents a closed system. Additionally, these essentials of life mandate a continuously changing temperature and pressure. Of unquestionable importance in the article was the fact that breath temperature is almost never validated by these devices and, indeed, some agencies have disabled the means of checking the same.
Medical acceptance of evidentiary breath testing dates back to a 1952 National Safety Council study that concluded “each of the tests made on the Alcometer, the Intoxometer and the Drunkometer ... will give comparable and reliable results for estimating the concentration of alcohol in the blood.” So they wrote, but a deeper examination discloses the inherent flaws in this conclusion. The report also sets forth that, “since each method involves different procedures, different empirical factors are involved in the calculation of concentrations of alcohol in the blood in each of the methods.” The harsh reality is that the methods now utilized in modern breath testing, infrared spectrometry and electro-chemical fuel cells, did not exist at the time of the committee’s examination and are far different from the archaic wet chemical procedure that was validated in the founding study.
Further, there is a far darker side to all this. Note the reference to the Drunkometer. More properly known as the Harger Drunkometer, it was a bulky wet chemical system invented in 1937. It was invented and originally marketed by Rolla N. Harger. When one peruses the 1952 report they will find that Rolla N. Harger, Ph.D. was one of the signatories approving the committee’s conclusion! Without question, validation by the inventor of his own product would never be afforded serious scientific credence today.
Are these issues known to law enforcement? Of course they are. Telling in this regard is that the alcohol simulator solution that is used to validate the proper operation of the machine at a blood alcohol level of .10 is not a .10 solution. New York uses a .12 solution and declares that this solution will provide a reading of .10 in a properly functioning machine. Why the difference? Pressure, in this case, vapor pressure. Due to differences in the vapor pressure, they are forced to use a higher solution to achieve the required .10 result.
So why is breath testing used? The short answer is that it is cheap, easy and has enjoyed longstanding approval by the scientific community, and therein lies the rub. Given various court decisions and acceptance by the New York State Department of Health of the various devices that are used in New York, legal challenges concerning these deficiencies are essentially out of reach.
Without question, police breath testing for alcohol in DWI cases is a cruel hoax that is scientifically, mechanically and ethically wrong. Regrettably it nevertheless survives.
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Edward L. Fiandach, Esq. is former founding member and dean of the National College for DUI Defense and ABA Board Certified in the area of DWI defense. He is the author of three extensive treatises on DUI, the latest of which is “New York Driving While Intoxicated” 3rd, published by Thompson Reuters. He is a lecturer across the United States and Canada on DUI litigation, including a recent series on breath testing for the New York State Bar Association. He successfully litigated fraudulent certification of Breathalyzer ampules in the matter of People vs. Uruburu, 169 A.D.2d 20, 571 N.Y.S.2d 965, which resulted in abandonment of wet chemical testing in the State of New York.
