New Jersey DWI Attorney John Menzel

What Happens If The Suspect Belches Or Vomits During The Observation Period?


Officers are trained that if they perceive something they believe to be a hiccup or vomiting or something that might lead to contamination, they must start the 20-minute observation period all over again. You’ll see this on occasion when you get error messages with breath samples. For example, if you get an error that says mouth alcohol detected or solution change required, the officer has to stop that test. They will usually switch to a different breath-testing instrument and begin the 20-minute observation period all over again because those types of error messages indicate a need to begin again. Also what can occur in New Jersey is occasionally, samples will be too far out of tolerance.

You’ll recall before we talked about the different readings being within a certain degree of precision. Occasionally they will stray beyond that degree of precision. After the officer does a calculation and he finds that to have occurred, then he is going to have to start all over again with a brand new 20-minute observation period as if that first test never even happened. Of course, we learn about that first test in discovery and it may give rise to questions about the validity of the following test, but nonetheless it’s very important that they maintain the integrity of the sample by redoing the test if they see a burp, belch, or get a particular kind of error message.

If The Procedure Is “Correctly” Performed, How Accurate Are The Readings On The Breathalyzer Test?

Accuracy is an interesting question because these instruments don’t necessarily measure the alcohol strength exactly. They do it in a certain degree of what we call uncertainty because no instrument can measure anything exactly. One reason we take two separate measurements of each different breath sample, and we measure two separate breath samples using those two separate technologies, is in recognition of the uncertainty and by helping to reduce the degree of uncertainty, which may call the results into question. If we get samples that are out of tolerance, again, they start anew. It’s perfectly acceptable to make a measurement with some degree of uncertainty as long as we know what that uncertainty is. For example, if somebody blows a higher number, a 1.02 or 1.03, the degree of uncertainty associated with that kind of result should be small enough so that, for purposes of law enforcement, it won’t make that much of a difference. However, that uncertainty can become quite critical when you are at certain threshold levels. For example, the legal limit in New Jersey is a 0.08.

If a result comes out close to that 0.08 amount, the uncertainty associated with it may give rise to a doubt as to whether that alcohol concentration would actually constitute a violation of the law. The same kind of reasoning would apply to 0.10 level. That‘s the level at which punishments increase. Instead of a 3-month revocation for a first offender, if the result is a 0.10 or higher, they’d be looking at a 7- to 12-month revocation of their driving privilege. If the reading is 0.15 or higher, that determines whether one is required to get an alcohol ignition interlock device installed in their car or not. So while we can define the degree of precision and uncertainty within certain limits, those limits will generally only be important at the margins, the 0.08, the 0.10, or the 0.15 levels.

John Menzel, J.D.

Learn your options - call me for your free, 20 min phone consultation (732) 899-1899

Are There Other Types Of Machine Or Human Errors That Might Impact The Test Results?

We mentioned some of the machine errors before. Keeping in mind that these instruments are not measuring alcohol directly, but only measuring them as a function of either light absorption in case of the infrared spectroscopy or as a matter of electrochemical energy created in a fuel cell or battery. If those two technologies diverge, that’s an indication of something we call the interferent, or some other substance on the breath that is affecting the way the instrument is reading what it’s supposed to be reading, which is ethanol. Neither the infrared or electrochemical technologies are specific for ethanol. They are both very non-specific as a matter of fact, however, they are non-specific in different ways.

The idea is that if we combine these two different technologies to measure a single breath sample to the extent that those functions agree with each other, we can infer a greater degree of specificity in terms of identifying ethanol as the chemical that is causing those infrared and electrochemical effects. However, while the combination of those two technologies increases specificity, they don’t eliminate specificity as something that we have to worry about. For example, if one has diabetes, one of the metabolic byproducts of diabetes is the creation of isopropanol, another type of alcohol, not drinking alcohol but rubbing alcohol.

Not too many people drink isopropanol, but one of the byproducts of a diabetic metabolism is the creation of isopropanol. This can actually cause the electrochemical and fuel cell technologies to deflect the same proportion as ethanol would. One of the issues with isopropanol is a concept known as partition ratio. One of the assumptions is that when we are measuring ethanol, the amount of ethanol in 2100 parts of breath is equivalent to the amount of ethanol in one part of blood. The problem with isopropanol is that ratio is different, it’s about 700:1. So one part of isopropanol can make the instrument think that there is three times as much ethanol in a sample as there really is. That’s a problem.

The other area where this can be a problem is if somebody has something called Gastroesophageal Reflux Disease or GERD. We talked before about looking out for burping and belching. Burps and belches are all pretty apparent. They are things that people can see, but one of the problems with a person having Gastroesophageal Reflux Disease is that the little sphincter that closes the stomach off from the esophagus doesn’t work right. Instead, it remains open. People with this condition frequently suffer significant bouts of heartburn or indigestion. While this condition can be treated with things like Pepsid or Nexient, the problem with those kinds of medicines is that they don’t cure the condition. They merely neutralize the acid and relieve the symptoms. So a person may not realize that they are experiencing GERD because all they are doing is relieving the heartburn.

If that sphincter remains open when you blow into a machine, the inter-abdominal pressure that drives lungs to expel breath into the instrument can also cause vapor from the stomach to be exhaled into the breath sample. This destroys one of the fundamentals of breath testing, that all of the vapor is coming from the lungs. Once you introduce stomach vapor into the mix, it destroys that relationship, and that breath test is not a reliable measurement of blood alcohol content. There are some people who just can’t deliver a proper sample. For example, in New Jersey, when the Supreme Court validated the Alcotest 7110 for use, they carved out an exception for women over the age of 65. That has to do with the required volume for a breath sample. Ordinarily, that’s a 1.5 liter volume but for women over 65, that minimum volume has been reduced to 1.2 liters.

If a person has COPD Chronic Obstructive Pulmonary Disease or asthma, or some other condition that affects their ability to exhale into the instrument, they may not be able to deliver the minimum volume required. In other words, regardless of whatever your sex or age may be, we have to persuade the court that you are the equivalent of what the Supreme Court views a 65 year old woman to be. If we can do that there may be some defense to what otherwise may look like a breath test refusal charge.

For more information on Belch Or Vomit During Breath Test, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (732) 899-1899 today.

John Menzel, J.D.

Learn your options - call me for your free, 20 min phone consultation (732) 899-1899

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