DataMaster DMT

It is possible for a person arrested for drunk driving who is suffering from GERD to have a breath test result that is way too high.  So what does ”way too high” really mean?  It’s impossible to say, but with GERD the breath test result could be as much as 100% too high.  It is more likely however that the breath test result is closer to between 20% and 80% too high.

GERD is an acronym meaning “Gastroesophageal Reflux Disease.”  The common name for this is condition heart burn. The reason the breath test result is falsely high is because with GERD the machine, called in Michigan the DataMaster, is not measuring breath alcohol or deep lung air.

Instead, the breath test machine is measuring alcohol gases or vapors erupting from the stomach into the mouth which are then blown into the DataMaster.  In this case the DataMaster is measuring stomach gas alcohol rather than breath alcohol collected from a sample of deep lung air.

Another problem occurs when the machine measures mouth alcohol rather than deep lung air. In this case the raw alcohol erupts into the mouth, thereby causing a false DataMaster result.  Either way, GERD causes a breath test result that is falsely high.

If you have been arrested for DUI, have been diagnosed with GERD and you think that your GERD may have impacted the DataMaster result, then it is important to substantiate this diagnosis. In other words, you must undergo confirmatory testing.

The first confirmatory test is called an endoscopy.  According to Wikipedia, “endoscopy means looking inside and typically refers to looking inside the body for medical reasons using an instrument called an endoscope.” During this test, a small catheter is placed into the esophagus and photographs are taken of the esophagus and the Lower Esophageal Sphincter (LES).

The more detailed way to describe this is as follows: “Esophagogastroduodenoscopy (EGD) (a form of endoscopy) involves insertion of a thin scope through the mouth and throat into the esophagus and stomach (often while the patient is sedated) in order to assess the internal surfaces of the esophagus, stomach, and duodenum.” Id.

After the test is complete, the specialist will look at these results (including photographs) to determine if there is evidence of damage caused by acid erupting into the esophagus from the stomach.  The photographs will also be inspected for evidence of a possible hiatal hernia, which “increases the likelihood of GERD due to mechanical and motility factors.” Id.

If the EGD reveals that the LES is open, then the patient has a Gastroesophageal Reflux Disease (GERD) condition with a constant reflux/regurgitation.  This is significant as it pertains to breath testing because with an open LES there is essentially an uninterrupted or open chamber beginning in the stomach, continuing into and through the throat and finally into the mouth.

With this condition stomach gases are able to escape (back flow/regurgitate) into the mouth from the stomach.  The defective sphincter (LES) allows the gases/molecules, including of course alcohol molecules, to leave the stomach and pass into the mouth.  During a breath test these alcohol gasses mix with the deep lung air, which also contains alcohol, and the accumulated gasses are “read” by the machine in a cumulative fashion thereby causing a false breath test result.

Another problem with GERD is the potential of raw alcohol to erupt from the stomach into the mouth. While it is true that mouth alcohol will dissipate rapidly the problem is that with an open LES the patient suffers from a condition that may produce constant reflux/regurgitation.  If this condition exits, and if the conditions during the breath test are appropriate, then a 15 minute observation period will not stop a false high breath test result.

The presence or absence of this condition is confirmed by a second test, called a 24 hour pH test (pH denoting the acidity level in a person).  According to Wikipedia, Esophageal pH monitoring is the current gold standard for diagnosis of Gastroesophageal Reflux Disease (GERD). It provides direct physiologic measurement of acid in the esophagus and is the most objective method to document reflux disease, assess the severity of the disease and monitor the response of the disease to medical or surgical treatment.  Id.

Esophageal pH monitoring is being performed using one of the following three techniques:

• Single sensor pH monitoring using a pH catheter
• Dual sensor pH monitoring using a pH catheter
• Wireless pH monitoring using Bravo pH capsule

The duration of the test is 24 hours in the first and second techniques and 48 hours or more for the Bravo capsule.  Id.

Unless the Bravo capsule is used an esophogeal pH test requires a catheter to be inserted through the nostril, into the throat, and down into the esophagus where it is stopped slightly above the LES.  The catheter remains in the subject for 24 hours.  The recorder monitors every episode of reflux/regurgitation during this time period.

If the appropriate medical tests are given and if they confirm the existence of GERD and the extent of the problem, then you will have an excellent potential defense to the breath test.

Barone and Dr. A. W. Jones - 2008.

This defense is not without its detractors, and you should expect the government lawyer to argue that the slope detector will cure this breath testing problem. To substantiate this claim, the government relies on a single, limited study published in the Journal of Forensic Science nearly ten years ago.  The author of this study was none other than A.W. Jones. This study used only ten subjects, and only four of whom were definitely experiencing GERD effects at the time of the study.  The fact that the authors concluded from this very limited study that a false breath test was “highly improbable,” only underscores that an erroneous result is certainly possible.

In a later article that appeared in the DWI Journal: Law & Science, Dr. Jones explains his 1999 study cited above.  In this subsequent article Dr. Jones acknowledges that the DataMaster’s slope detection is inadequate to detect mouth alcohol.  Dr. Jones reiterated this position in Fitzgerald, Intoxication Test Evidence, where he again acknowledges that GERD can cause false results.

In another more recent DWI Journal: Law  & Science article, published in 2007, Jones indicated:

It is widely known that many breath alcohol instruments currently used by law enforcement worldwide are inept at detecting mouth alcohol under some circumstances.  For example, there is no published evidence that the more dangerous form of mouth alcohol, namely that which might erupt from the stomach in connection with a burp, belch, or regurgitation is successfully detected and distinguished from alcohol originating from the lungs.

Id. at Pg. 2.

Thus, even Jones, the author of the study relied upon by the government, has acknowledged that slope detectors don’t work well enough to detect mouth alcohol that originates from GERD.

The so-called GERD defense has been recognized as a valid breath test defense in drunk driving cases in at least one state. In People v Bonutti, 212 Ill 2d 182; 817 NE2d 489 (2002), the Illinois Supreme Court recognized the potential danger that GERD could have in creating a false breath reading.  The Bonutti Court upheld the suppression of breath test results of a defendant who was suffering from GERD at the time of test.

There, the court said:

In closing, we note that this is not the type of suppression case in which clear evidence of criminal wrongdoing is withheld from the fact finder because of a prosecutorial misstep.  Section 1286.310(a) [of the breath-testing administrative rules] exists because regurgitation within 20 minutes of a breath-alcohol test can render a false positive. In other words, a lack of compliance with section 1286.310(a) has the potential to create criminals out of people who are not. This is not a “technicality,” and it is not a contingency that this court will countenance.

Bonutti at 192; 817 NE2d at 495

While the Bonutti decision was subsequently superseded by statute, which precludes suppression of a breath test result from regurgitation short of a test-taker’s vomiting, a defendant is still permitted to argue the validity of the test results using expert testimony. See, People v Lindmark, 381 Ill App 3d 638, 660; 887 N.E.2d 606, 625 (2008).

WARNING: If you suffer from GERD and have been arrested and charged with OWI based on UBAL (unlawful bodily alcohol level) you could be wrongly convicted of drunk driving. Contact the Barone Defense Firm today for your FREE consultation.

RFI Breath Test Defense

In reviewing videotapes of our client’s DUI arrests we often see cell phones being used in the booking room at the same time that the breath test is being administered.  The problem is that cell phones create radio waves, and these waves can interfere with the breath test.  Here is a videotape regarding this problem.  The videotape addresses the Intoxilyzer.  In Michigan we use the DataMaster, but the underlying concepts are the same.

Today cell phones are ubiquitous, and it is not unusual to see them in and around the breath testing equipment.  The prohibition against using portable radio transmitters, including cell phones, is grounded in well-known limitations in infrared breath testing technology.

The problem originally dates back to 1982, when “Smith & Wesson, a major manufacturer of breath-testing devices, notified law enforcement agencies that its Breathalyzer Model 1000 had been found to experience interference from radio frequency transmissions under certain test conditions, resulting in false test results.  Subsequent investigation suggested that the Breathalyzer Models 900 and 900A also were affected by various power levels.”[i]

But the problem of radio frequency interference didn’t go away with better more modern equipment. Such breath testing equipment typically has RFI detectors incorporated within them.  The problem with these detectors is that they are not predictable.  Thus, it is impossible in many cases to determine whether or to what extent any particular breath test was tainted. With an instrument such as the Breathalyzer, where someone’s rights and freedoms are at stake, unpredictable performance is unacceptable.”[ii] And, according to at least one source, RFI can potentially lead to breath test scores inflated by as much as 100%.[iii]

Additionally, as repeated tests have demonstrated, there is a segment of the frequency band to which the detector is essentially blind.  If there is a source of interference from a device emitting electromagnetic waves in this frequency range, it will not be detected.[iv]

Manufacturers and state experts will often point to the infalability of the RFI detectors that exist in modern breath testing equipment.  The problem is that, like slope detectors, and as shown by Mr. Biss in the video above, RFI detectors don’t work.  Thus, the incorporation of the RFI detector does not necessarily ensure that the breath testing equipment will be protected from RFI.  In order to pick up radio waves, the antenna connected to the RFI detector must be oriented in the proper position.

This situation can best be understood if one thinks about trying to pick up a station with an old fashioned portable radio or a television station with the new digital tuners.  It is important for the antenna of the radio or television to be oriented in the right position to receive the desired station.  Thus, even though the RFI detector may be capable of sensing RFI, the electronic circuitry of the particular breath testing machine could possibly be located in a position that it will not pick up the existing radio waves.[v]

Contact the Barone Defense Firm today to discuss whether or not RFI may have caused a false result in your drunk driving case.

[i] Lawrence Taylor, Drunk Driving Defense § 6.04[J] (6th ed.) (2006).

[ii] Feldman and Cohen, “The Questionable Accuracy of Breathalyzer Tests,” 19 Trial 6, 54 (1983). Excerpted from: Patrick T. Barone, Defending Drinking Drivers § 226 (2nd ed.) (2009)

[iii] See, Paul Schop, Is DWI DOA?: Admissibility of Breath Testing Evidence in the Wake of Recent Challenges to Breath Testing Devices, 20 SW. U. L. REV. 247 n.22 (1991)

[iv] Lawrence Taylor, Drunk Driving Defense § 6.04[J] (6th ed.) (2006).

[v] Don Nichols and Flem Whited, Drinking/Driving Litigation Criminal and Civil, § 22:8 (2nd ed.1998).

Michigan DataMaster

The Michigan administrative rules for breath testing require that the breath test operator in a drunk driving case observe the suspect continuously for 15 minutes prior to administering the breath test.

The reason the 15 minute rule exists is because it takes about 15 minutes for mouth alcohol to evaporate.  If mouth alcohol exists then the result is likely to be a falsely elevated breath test result.  This is because the breath test machine is measuring mouth alcohol rather than breath alcohol.[i]

In theory, the administrative rules were promulgated to ensure the integrity of the breath testing.  In a science journal article written by Dr. K. M. Dubowski[ii]the four critical safeguard for breath testing are discussed.  In this article Dr. Dubowski indicates that there are four necessary scientific safeguards for breath testing (1) a pretest deprivation-observation period of at least 15 minutes, (2) a blank test, (3) analysis of at least two separate consecutive breath samples, and (4) an appropriate control test to accompany each subject test. [emphasis supplied].

This position is supported by several cases in Michigan including the People vs. Boughner, where a 35 minute videotape of the defendant showed that the operator of the Breathalyzer machine observed the defendant for no more than 8 minutes before the test was given.  The Boughner court concluded that the administrative rule had certainly been violated, and suppressed the results.[iii] Other Michigan cases[iv] have held that compliance with AC, R325.2655 (1)(e) is critical for an accurate test, and that failure to comply should result in suppression of the test results.

Another Michigan case[v]addressed the question “what is the proper observation period before administering the evidentiary breath test.”  Here the arresting officer testified that the defendant was in his presence for more than the required 15 minutes, but that at times the defendant was only in his peripheral vision.  In this case the court suppressed the test results after reviewing the videotape recording.  This tape showed, contrary to the police officer’s testimony, that there was a two minute period when the officer had his back to the defendant.  Because this “non-observation” was immediately before the test was administered, the court found that a 15 minute observation period was lacking.  In suppressing the test results the court specifically rejected the prosecutor’s argument that compliance with AC, R 325.2655(1)(e) only goes to the weight of the breath test results and not to the admissibility thereof.

However, there has been an attempt to largely eviscerate the 15 minute observation rule, and this attempt is clearly demonstrated by a review of the “new” administrative rules as well as by recent (albeit unpublished) case law.  The result of this rule and of these cases is that police officers can now violate the 15 minute rule with impunity.  This certainly can have a significant impact on the reliabily of breath tests in drunk driving cases, and can result in a wrongful conviction for DUI.

The new administrative rule states in part as follows:

Breaks in the observation lasting only a few seconds do not invalidate the observation if the operator can reasonably determine that the subject did not smoke, regurgitate, or place anything in his or her mouth during the break in the observation.

Although it would seem logical that if the drafters decided to be this specific in say partial breaks are not a violation, then the opposite interpretation is also true; i.e, that breaks in the observation period lasting more than a few seconds do invalidate the observation period.

Michigan DataMaster

Unfortunately, some recent Michigan DUI cases have come to the opposite conclusion.  For example, in the case of People v Kneisler[vi] the court stated that the results of the breathalyzer test were reliable and should not have been suppressed where the 15-minute observation rule was technically violated, but suppression of the test results was not the appropriate remedy, and People v. Mix[vii], which held that although the officer did not fully comply with the 15 minute observation period requirement,  he observed the defendant for approximately 9-10 minutes during which time there was nothing that led the officer to believe that the defendant had anything in his mouth, vomited, ate or drank. Accordingly, the officer’s failure to follow the rule was harmless error: and the trial court properly determined that suppression was not warranted.

Despite all this, it is still important to watch the videotape of the breath test being administered and for DUI defense lawyers to always raise the argument and ask for an evidentiary hearing.  This is because there are still a variety of published cases that have favorable language for the defense, and which stand for the following rules of law:

1. The administrative rules with respect to the administration of Datamaster tests indicates that their purpose is to ensure the accuracy of those tests. Failure to meet any of the foundational requirements will preclude the use of the test results.[viii]
2. In order for chemical test results to be admissible the test results must be both relevant and reliable.[ix]
3. The rules of statutory construction apply to the interpretation of the administrative rules.  Thus, meaning should be given to every word of a rule, and no word should be treated as surplusage or rendered nugatory if at all possible.[x]
4. If the language of the rule is clear and unambiguous, additional judicial construction is neither necessary nor permitted, and the language must be applied as written.[xi]
5. The administrative rules regarding the administration of the DataMaster were adopted pursuant to statutory authority [and therefore] have the force and effect of law.[xii]
6. When the rules regarding Datamaster tests have not been complied with, the accuracy of those tests is considered sufficiently questionable so as to preclude the test results from being admitted into evidence.[xiii]

If you were arrested in Michigan for drunk driving and took a breath test, please contact the Barone Defense Firm today for your FREE case evaluation.

We will discuss with you whether or not the breath test rules were violated in your case and how this fact can be used to help obtain a great result.

[i] A theory of breath testing is that the breath from the deep lungs is thought to be at equilibrium with blood alcohol.  This theory disregards somewhat the idea of partition ratio.  Some scientists also believe that this model of breath testing is flawed.

[ii] Quality Assurance in Breath Alcohol Analysis, 18 Journal of Analytical Toxicology 306-311 (1994),

[iii] 209 Mich. App. 397 (1995)

[iv] People vs. Willis, 180 Mich. App. 31 (1989).

[v] People vs. Andreason, 1997 WL 33331014 (Mich App Nov. 21, 1997),

[vi] Docket No. 262384, (unpublished January 9, 2007)

[vii] Docket No. 282948 (unpublished  May 14, 2009)

[viii]People v. Tipolt, 198 Mich. App. 44, 46; 497 N.W.2d 198 (1993). (citations omitted); People v. Willis, 180 Mich. App. 31, 35; 446 N.W.2d 562 (1989).

[ix] People v Wager, 460 Mich. 118,126; 594 NW2d 487 (1999).

[x]People v Fosnaugh, 248 Mich. App 444, 451; 639 NW2d 587 (2001).

[xi] Camden v Kaufman, 240 Mich. App. 389, 395; 613 NW2d 335 (2000).

[xii] Id. at 35.

[xiii]People v. Boughner, 209 Mich. App. 397, 398-399; 531 N.W.2d 746 (1995).

Every DUI lawyer knows that winning OWI trials requires persuading juries to disregard  a breath or blood test.  But disregarding does not mean ignoring.  For this reason one of the first questions a DUI lawyer will ask his prospective client is: what did you blow?

Certainly this is a legitimate question for the DUI lawyer to ask because the number will have some sort of impact on the outcome of the case.  For example, the judge will usually ask the DUI lawyer to stipulate to the test result as part of the factual basis for the plea and the prosecutor will rely on the test when deciding whether or not to even bother offering one.

DUI Jury Trial

The problem with this emphasis on the test result is the simple assumption that underlies it which is that the number is meaningful.  By allowing the focus to be placed on the result DUI lawyers fall into the same faulty thinking to which jurors often fall prey.  An even bigger problem with this failure to challenge the test results is that this failure causes unconvincing arguments to be framed during trial.

The surest way for a DUI lawyer to get to a one-word verdict at trial is to either fail to make a proper argument about the appropriate meaning to attach to the breath or blood test result, or to allow a prosecutor to make an improper one.

Perhaps the most common yet certainly improper argument prosecutors make is that if the chemical test is it admitted, and if it’s over .08, then the law requires the jury to find the defendant guilty.  Prosecutors may even ask the jury to commit to such a verdict of guilty in voir dire.  But during trial what does the number really mean?  In many ways it depends on who you ask and why you are asking.

A DUI trial lawyer must start challenging the improper assumptions made about the meaning of the test.  Even more importantly, DUI lawyers must challenge prosecutors when their arguments to the jury relative to these assumptions are sloppy or worse contrary to the law.  The fact is that nothing in the law requires the jury to automatically find the defendant guilty merely because of a number printed on a piece of paper.  When thinking about the test it is important for the DUI lawyer to remember that the ultimate question for the jury is weight, and this is reflected in Michigan’s DUI jury instructions CJI 15.5 where the jury is finally instructed that “you may give the test whatever weight you believe that it deserves.”  If a DUI lawyer only makes one argument at trial during summation, this should be the one.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159 , or filling out this consultation request form. Call now, there’s no obligation!

Michigan DataMaster

Michigan’s breath alcohol testing Class IIIB DataMaster Operator’s Training Manual sets forth all of the requirements necessary for a mobile breath testing van in Michigan.  The mobile van was first introduced in 2001.

In 2003 drunk driving saturation patrols using the BAT mobile van were conducted in Michigan which netted at least 100 drunk drivers.  According to the NHTSA Report on Michigan BAT Mobile, one in every 25 Michigan drivers has one or more alcohol convictions on his or her driving record.

The mobile unit itself is a 20 foot Diamond Bus customized for the purpose of transporting and supporting a mobile breath testing (DataMaster) van in Michigan.   As such, it contains a fax machine, cellular phone and other equipment along with a work station for processing Michigan drivers arrested for OWI (drunk driving).

The Class IIIB DataMaster Operator’s Training Manual contains some interesting information, such as a procedure to test the mobile DataMaster with a .04, .08 and .20 simulator solution.  DataMasters that are kept at police stations are only tested using a .08 solution.

Diagnostic checks are also performed on a very regular basis, and include things like a check of the flow detector, pump, filters, quartz standard and calibration.  Again, at best, a stationary DataMaster in Michigan is only tested every 120 days.

Another very interesting and regular check performed on the mobile DataMaster  is an acetone check.  To do this acetone is added to the simulator solution and the DataMaster checked to see if it will produce an “interference detected” error code.

Radio frequency interference is also checked for the mobile DataMaster.  This is done as follows:  The check is performed with a handheld radio.  The radio is held within five feet, and the push to talk button is activated.  The radio is then moved toward the DataMaster until the machine “aborts” the test.  The DataMaster then prints the error message “radio interference” on the evidence ticket.

None of this information is included in the class II DataMaster operator’s training manual and it is interesting to see how these tests are actually performed in the field.  Obviously the tests that are used for acetone and radio frequency interference are substantially different from what would happen in the “real world” during an actual DataMaster breath test of a Michigan driver arrested for OWI.

If you were arrested in Michigan for OWI (drunk driving); then you should discuss the many possible defenses with your Michigan drunk driving lawyer.  It may be that you have a defense to the breath test worth pursuing.  It could mean the difference between conviction and acquittal.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!