Breath Test

"Rhode Island Breathalizer Issues"

Cross-examination of the prosecution expert can make a point to the jury that the defendant's rights should not be determined by small samples and breath-alcohol measurements involving miniscule quantities. The cross-examiner could probably get an admission from the expert that, if the amount of alcohol involved in a particular test were on a table in front of the jury, they could not see, smell, taste, or feel it. However, it would probably do the cross-examiner no good to push the expert too far on the matter of minute quantities since, given an opportunity, the expert would point out that making measurements of small quantities is not uncommon with modern laboratory procedures. Cross-examination of the expert to emphasize to the jury the opportunity for error in measuring extremely minute quantities of breath-alcohol might run as follows: ...

Q. Breath analysis for alcohol amounts to this, doesn't it: a breath-test device collects a certain amount of air exhaled from the subject's lungs and passes that air through the chemicals in a test ampoule; the chemicals gather the alcohol out of the sample; and the device measures the alcohol absorbed by the chemicals.

A. That is right.

Q. Any claim to accuracy made for breath-testing devices assumes that the procedure measures almost infinitesimal quantities of alcohol found in the breath, is that correct?

A. Yes.

Q. As I understand it, a Breathalyzer collects the equivalent of 52.5 cubic centimeters of breath, is that correct?

A. That is correct.

Q. How many cubic inches does 52.5 cubic centimeters amount to?

A. A little more than 3 cubic inches.

Q. And the breath-alcohol reading is converted by the testing device into a blood-alcohol reading?

A. Yes.

Q. You have testified to a blood-alcohol reading of the defendant's breath sample taken on , of 0.15 percent, is that correct?

A. Yes.

Q. A reading of 0.15 percent blood-alcohol presumes to indicate that in the defendant's blood there were 15 parts by weight of alcohol in every 10,000 parts of blood, is that correct?

A. That is correct.

Q. And since the specific gravity of alcohol is quite close to four-fifths that of whole blood, that same concentration would amount to only two parts of alcohol by volume in every 1000 parts of the defendant's blood, is that correct?

A. Yes.

Q. However, it was the defendant's breath that was tested and not his blood?

A. Yes.

Q. And breath tests for alcohol are not as precise as blood tests for alcohol, is that correct?

A. Yes.

Q. Hasn't the alleged relationship between breath-alcohol and blood-alcohol been stated in fixed terms, presumably applying to all persons?

A. Yes.

Q. What is that relationship?

A. It is 1:2100. Blood-alcohol is 2100 times greater than breath-alcohol in a given subject.

Q. However, aren't there individuals in whom the relationship varies from the average?

A. Yes.

Q. If we accept, just for the moment, a breath-alcohol to blood-alcohol ratio of 1:2100, the quantity of alcohol measured in the breath sample would be equal to the quantity of alcohol to be found in 1/40th of a cubic centimeter of the defendant's blood?

A. That is correct.

Q. Is it true that one cubic centimeter of a liquid such as blood is equivalent to 0.034 fluid ounces, or very close to 1/30th part of an ounce?

A. That is correct.

Q. So, then, the amount of alcohol in the breath sample collected from the defendant would be equivalent to the amount we would expect to find in 1/30th part of 1/40th part of an ounce, 1/1200th part of an ounce, or 0.00085 ounce of his blood?

A. Yes.

Q. To pin these extremely small amounts down further, since there are 480 drops in an ounce by apothecaries' fluid measure, the equivalent in blood of the amount of breath analyzed is less than half a drop—amounting, as a matter of fact, to 408/1000ths of a drop?

A. That is correct.

Q. And the amount of alcohol gathered by the chemicals to produce a blood-alcohol reading of 0.15 percent would be equivalent to only 2/1000ths of that half drop of blood, or eight ten-thousandths of a drop, or five hundred-thousandths of a cubic centimeter, or seventeen ten-millionths of an ounce?

A. I assume you are correct.

"Breathalyzer Elements for Admissibility"

A Rhode Island DUI Case will often times include evidence of breathalyzer or breath test results. Defense counsel should inform himself of the foundation that the prosecution must lay in order to qualify the particular intoxication test. In the absence of an adequate foundation, defense counsel should object to admission of results of the test. Although all states do not require proof of the same matters, items from the following list could reasonably be required by any court as a predicate, and defense counsel should be prepared to object to admission of the test results if any applicable items are not established by the prosecution:

1. That the subject was legally arrested for driving while intoxicated prior to the demand for the test;

2. That the operator of the device was properly trained and licensed;

3. That the operator and the device were under adequate supervision by an expert;

4. That the chemicals used were compounded properly;

5. That the test was administered in accordance with the test methods directed by the state agency that supervises intoxication test results.

6. That nothing alcoholic was in the subject's mouth for 15 to 30 minutes before the test;

7. That the person interpreting the results of the test was qualified to do so; and

8. That the reading of blood-alcohol content showed a violation of the state statute creating a presumption of intoxication.

"How recent interpretations of Confrontation Clause and hearsay rules will impact admissibility of Breathalyzer certificates in drunk driving, DUI, DWI, and Driving under the influence prosecutions…"

The following case reflects how recent interpretations of the Confrontation Clause and well settled hearsay rules will impact the admissibility of Breathalyzer certificates in drunk driving, DUI, DWI, and Driving under the influence prosecutions…       

Court of Appeals of Virginia,
Phillip Lawton GRANT  v.  COMMONWEALTH of Virginia.
Record No. 0877-08-4.
Sept. 1, 2009.

Background: Defendant was convicted in the Circuit Court, Fairfax County, Bruce D. White, J., of driving while intoxicated. Defendant appealed. 

Holdings: The Court of Appeals, Petty, J., held that:

(1) attestation clause in certificate memorializing the results of a blood test was testimonial in nature, and its admission violated the Confrontation Clause, and
(2) admission of certificate in violation of Confrontation Clause was not harmless error, and required reversal. 

Reversed and remanded.

Present: FELTON, C.J., and FRANK and PETTY, JJ.
PETTY, Judge.

  *716 Appellant, Phillip Lawton Grant, challenges his conviction for driving while intoxicated, in violation of Code § 18.2-266. Grant argues that his conviction should be reversed because the certificate of the results of a chemical analysis of his breath indicating his blood alcohol level was admitted into evidence in violation of his Sixth Amendment right to confront witnesses against him.FN1 **86 For the reasons explained below, we agree with Grant and reverse his conviction. 

FN1. Grant's question presented on appeal is:

Whether the trial court erred by denying appellant's motion to exclude from evidence, or alternatively to strike from evidence, the certificate of analysis because the Commonwealth failed to comply with appellant's timely “Notice of Defendant's Exercise of Confrontation Rights Pursuant to Va.Code 19.2-187.1.”  

While both parties argued that the statutes governing the admissibility of the breath test certificate are Code §§ 19.2-187 and 19.2-187.1, the express statutory authority for the admission of a breath test certificate is set out in Code § 18.2-268.9.Code § 19.2-187 is limited to certificates of analysis prepared by the Division of Consolidated Laboratory Services, the Department of Forensic Science, and certain other enumerated laboratories. Further, Code § 19.2-187.1 only provides for a right by the defendant to examine persons performing analysis pursuant to Code § 19.2-187. It does not appear that the Fairfax County Adult Detention Center is one of the laboratories enumerated in Code § 19.2-187. However, whether the parties and the trial court relied upon the correct statutory scheme addressing the admissibility of the breath test certificate is not before us in this appeal. Therefore, we assume without deciding for the purposes of this opinion that Code § 19.2-187.1 is applicable to this case.