Every Breath You Take, Every Test You Fake

Want to beat the rap on your next DUI? Take some considered advice and learn to control your exhalation.

It wasn't until David Tory failed his second breathalyzer test of the day that he started to beg.

Flunking the first test after his arrest had been bad enough. Tory believed he was well under the legal limit, yet he'd somehow ended up sitting in the Palm Beach County jail charged with driving while intoxicated.

But now things were getting ridiculous. This second test was supposed to be just a formality, after all. The county had a policy not to release DUI suspects until their blood alcohol concentration (BAC) measured less than .050, but, after having sat in a cell for eight hours, Tory felt stone sober.

He knew the routine. Leaning over the flat silver box, he grasped the black breath tube, put his lips to the clear plastic mouthpiece, and blew as hard as he could. When he ran out of breath he stopped. Moments later a square beige card came spitting out of the machine: .050 on the nose. No release.

He couldn't believe it.
"Come on, man, I want to go home," Tory recalls beseeching Richard Riggle, the corrections officer administering the test. "This is crazy."

Riggle remembers looking Tory up and down with a considering eye. Should he take pity on the pathetic 28-year-old? Tory had never before been charged with DUI, he didn't look drunk, and he'd barely flunked this last test. Riggle decided to play nice.

"All right," he said, according to Tory's recollection. "Just because I like you and I want to see you get out of here. Do what I say."

Riggle directed Tory to take a deep breath and let it out. Then take another. And another. Following Riggle's step-by-step instructions, Tory hyperventilated "to the point where I was really feeling lightheaded." Then he leaned over the silver box, grasped the black tube, and blew once more. Unlike the last time, however, he didn't keep blowing until he ran out of breath. This time Riggle told him exactly when to stop.

Riggle's advice worked like a new watch. Tory now had a valid test with a result of .035. The sudden .015 drop in Tory's BAC was the equivalent of having taken nearly two fewer drinks. He was free to leave.

Now, six months after having been successfully coached into minimizing his breathalyzer results, Tory says it bothers him that his DUI charge is based so heavily on a test the results of which can so easily be massaged.

"If an operator can coach you into getting a lower result, what good is the test?" he asks. Despite his outrage Tory claims he doesn't plan on fighting the charge because his attorney fears the "notoriously conservative" Palm Beach County juries. Then again, there's also the fact that his initial breathalyzer test put his BAC at .131, well over the legal limit of .080.

But that doesn't change his central contention, which experts say is true: The breathalyzer can be beat.

As a deputy with the Broward Sheriff's Office specializing in forensic technology, David Fries spent the past thirteen years working with breathalyzers of all types. "For someone who knows what they're doing, manipulating the results isn't all that difficult," says Fries, who now works as a consultant with Forensic Associates of Minneapolis, Minnesota. "The difference [in test results] could be significant."

With its blinking red lights, flat boxy shape, and two-foot black tube sticking out one side, the Intoxilyzer 5000 looks sort of like a combination of the robot from Lost in Space, a laptop computer, and a slot machine. For the past five years, it's been the only model of breathalyzer approved by the Florida Department of Law Enforcement, which means it's the only machine the results of which can be used in Florida courts.

According to Fries there's no question that the instrument accurately measures BAC. However, like most machines, the Intoxilyzer is only as good as the data it gets.

To produce an accurate reading, the machine requires air from deep in the lungs, where small sacs called alveoli infuse blood with oxygen. These alveoli are where most of the alcohol molecules in a breath sample come from.

The machine has three procedures built in to ensure that it's getting this necessary deep lung air. First, it measures the force with which a suspect blows into the tube. Second, it times the breath sample. Third, it tracks the rise of the BAC measurement throughout the sample. For a test to be valid, a suspect must blow (1) for at least six seconds, (2) with enough force to keep a tone sounding during that time, and (3) in a way that causes the BAC measurement first to rise and then to level off in a predictable pattern. If these three criteria aren't met, the results are invalid, and the suspect is marked down as having refused the test.

Contrary to popular folklore, the trick to defeating the breathalyzer does not involve eating garlic, licking onions, or belching into the breath tube, says Joe Barbuto, a Coral Springs police officer who also does crime reconstruction and breathalyzer work on the side. (Throwing up into the tube has been known to work, Barbuto says, until the jury sees the videotape.)

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