When to Say When: WDN Staffer Pushes Testing of Breathalyzer to the Legal Limit

Wapakoneta Daily News

Saturday, March 8, 2008

By Mike Burkholder Assistant Managing Editor

DUBLIN – Figuring out how much is too much to drive home when drinking is any age-old debate. With stricter OVI laws and stiffer penalties for refusing to submit to a breathalyzer, motorists often fall victim to flawed thinking that they would be OK after "a few beers."

However, even after consuming only a "few beers," a person could become impaired enough to be arrested for OVI. That same person could also submit to a breath test and register a number significantly lower than the legal limit of 0.08 blood alcohol content (BAC) and still be charged with an OVI violation.

On Thursday night, Attorney Jon J. Saia of Columbus and members of the Advanced DUI Seminar Committee, held an event in Dublin to demonstrate the capabilities of breath test machines as well as to illustrate some of the machines' flaws.

I attended the seminar as a way to gauge two things-how much alcohol would it take for me to reach the legal BAC limit and if there are flaws in the machines that could skew test results.

Prior to the event, I had the chance to talk with Dr. Alfred Staubus, a retired professor of pharmacology and toxicology from The Ohio State University. Staubus, who has testified at numerous OVI trials across the country, identified a weakness in the machines that are used to administer OVI tests.

"The machines are computers and come equipped with a memory chip to log all OVI tests administered so those tests can be reviewed," Staubus said of the DataMaster, which is used by local law enforcement officials. "In Ohio, the memory chip is disabled and there is no way to review the tests."

Another question Staubus raised was the initial accuracy of a breath test. A breathalyzer is supposed to measure deep-lung breath, Staubus said. However there are instances where an initial test could make a person test higher than it should.

"Sometimes they measure mouth alcohol," Staubus said, noting a burp before a test could skew the results. "That's why law enforcement should give two tests. To make sure they are getting an accurate reading. If you get a false positive, you could be wrongfully convicted."

Staubus said in the state of Washington, officers are required to administer two breath tests to ensure they receive an accurate reading. Staubus also said that logs of all tests administered are uploaded onto a server for access via the Internet.

"It's basic scientific safeguards," Staubus added.

Despite concerns over the testing process, Staubus stressed that he does not endorse people drinking and driving while impaired. Staubus said he just wants to ensure the integrity of the testing system.

"I do not want people drinking and driving," he said. "I want those people scientifically tested and imprisoned. It is not illegal to drink and drive in Ohio, it is illegal to drive while impaired."

I started the experiment by eating two chicken fingers and a handful of carrots. Prior to drinking, I was informed by Staubus that the food could slow down the alcohol level of absorption into my bloodstream. Staubus also said given my weight of 170 pounds, I should reach the legal limit of 0.08 with five beers in an hour.

I began drinking at 7:15 p.m. and ended the experiment at 8:45 p.m. At 7:27 p.m. I finished my first beer and blew a 0.01, well below the 0.08 legal level.

At 7:47 p.m. I was administered two breath tests after finishing my second beer. However, the results were significantly different and showed how a breath test could produce a skewed result.

I tested on the Intoxilyzer 8000, and registered a 0.047 BAC. A second test on the DataMaster produced a 0.028 BAC, a more accurate and reasonable result after two beers. When I inquired about the result discrepancy, Staubus gave a simple reply.

"The first one measured mouth alcohol," he said. "It didn't measure deep-lung air."

After a third beer at 8:15 p.m., I was given a field sobriety test by Saia. Saia gave me a horizontal gaze and nystagmus test, a common visual test give to suspected OVI offenders.

Without knowing my BAC, Saia gave me the test and noted that I exhibited four of the six clues of being impaired. That result could have led to my arrest on suspicion of OVI.

Prior to that test, I passed a standard balance test. At 8:18 p.m. I was given a breath test. Saia said that since I had failed the eye test, there was a 77 percent chance I would test at 0.10 or higher. However I registered a 0.042 BAC, well below the 0.08 legal limit.

I finished my fourth beer at 8:35 p.m. and was given another balance test. I failed because I took too many steps forward and stumbled while walking the line. My eyes looked glazed, another sign of impairment.

A breath test showed that I registered a 0.056 BAC, still below the legal level but I began to feel a little "loopy" and definitely should not have even thought about climbing behind the wheel of a motor vehicle. I again failed another field sobriety test administered by Saia.

I closed out my experiment by downing my last beer at 8:45 p.m., bringing my total to five beers in less than 90 minutes. A subsequent breath test showed my BAC to be 0.065. While I was still below the legal limit, my "loopiness" increased, and I still would be in no shape to drive a vehicle.

I took another test a minute later, but this time I ate a slice of Wonder Bread before hand. The breath test showed I had a 0.071 BAC. Saia said that for some reason, Wonder Bread tends to skew the test results. This was illustrated further when a reporter from WOSU, who was not drinking, did the same test and registered an invalid result.

While I was not able to achieve a BAC of 0.08, the event did open my eyes to just how impaired alcohol can make you at levels lower than the legal limit. While I was consistently below the legal limit, I was in no shape to operate a motor vehicle as the night progressed. Even though I failed field sobriety tests, I was under the limit and probably could not have been convicted of an OVI had I actually been driving and was arrested.

The experiment also showed the flawed thinking behind the logic of "I'll only have a few and I'll be fine." While a few beers may not put a person over the legal limit, it could begin to impair a drive by slowing their reflexes and causing them to use poor judgment.

People also think that they can drink a "few" beers and still be OK to drive if they wait. But Staubus said that it typically takes an hour of not drinking to reduce a BAC by 0.02. For instance, if you have three beers in an hour and do not drink for an hour, one of those beers has left but you still have two in your system.

There are cases where a person could pass all field sobriety tests, but be significantly over the legal limit. This tends to be the case with alcoholics, who often register tests two or three times the legal limit when arrested.

The event also showed how there are kinks in the testing methods. By only giving one test, law enforcement is banking on the infallibility of a machine. However as I have shown, taking two tests, one right after the other can produce significantly different results.

I do not condone drinking and driving and value the job out law enforcement officials do in keeping the roads safe for motorists. However the event was a learning experience and is one I wish everyone could go through. By being able to see just how impaired you are as you drink really does make you think twice about getting behind the wheel. It also showed how relying on one test might not be the best procedure to ensure an accurate breath test is obtained. However I am sure that if more people had the chance to experience what I experienced Thursday night, there would be less OVI violations and maybe some lives would be saved in the process.