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.)
The trick to beating the machine is (1) to hyperventilate until the old air is expelled from deep in the lungs, (2) to blow with the least pressure necessary to ensure a valid test, and (3) to blow for the minimum time allowed. Basically the point is to deny the machine access to the deepest third of the air in one's lungs.
One of the keys to accomplishing this delicate balancing act is to make sure that the display panel is visible while one is blowing, according to Barbuto.
Typically an operator will tell a subject to blow as hard as he or she can until the tone stops. What the operator won't say, however, is that the tone will never stop as long as the machine continues to measure alcohol in an incoming breath sample. Those who follow this instruction will end up blowing until they've emptied their lungs into the machine, which is exactly what the operator wants in order to maximize the BAC results.
What a person hoping to get a lower score should do is to blow just barely hard enough to keep the tone going while watching the display panel for a set of rapidly fluctuating numbers following a decimal point. When a zero suddenly appears to the left of the decimal point, stop blowing; the zero's appearance means the machine has enough data for a valid test.
Sometimes operators try to keep subjects from seeing the display panel, Barbuto says. "They might try to put a card over [the panel], or make the person stand to the side so they can't see."
And even if you can see the panel, it's not as easy to fool the newer version of the 5000 series, the 66 model, which requires two tests taken at least two minutes apart. If the results of these tests differ by more than .020, the test is invalid.
So even if someone manages to fool the machine once, it's unlikely that they'd be able to fool the machine again in precisely the same way, Barbuto says. "I can do it, but that's because I've had a lot of practice."
Then again, Tory's experience proves that it can be done, at least with the help of a good coach. Tory had been driving home from a party at two in the morning when he claims he fell asleep, clipped a guardrail, and then crashed his car. Although an air bag saved him from serious injury, he blamed his failure to pass a field sobriety test on the fact that he was still groggy from the crash. So when he took the first breathalyzer, he was shocked when it came back with a reading of .131. After spending eight hours in jail, he was then confounded to learn that his BAC hadn't yet fallen below .050.
That's where Riggle came in. "Sometimes I tried to help people out," he says. He doesn't do it anymore, though, because the county has since dropped its requirement for a prerelease breathalyzer test. Following guidelines developed by the Florida Department of Law Enforcement, the county now allows DUI suspects in every case to walk after eight hours.
Riggle's helpful nature causes no problem for Eddie Anderson, the manager of the FDLE's Alcohol Testing Program. "The operator can say whatever he wants to say while he's doing the test," Anderson says. "As long as it's a valid test, I have no problem with that."
Anderson does, however, agree with Fries that it's high time Florida got a new breathalyzer. As the only such machine certified by the FDLE, the Intoxilyzer 5000 has had the state market monopolized for the past five years. But now -- with its technology "eight to nine years behind the curve," according to Fries -- the model will soon be seeing some competition. Anderson says that later this year the FDLE will begin an evaluation program to choose either an upgrade for the 5000 series or an outright replacement.