Who do you want as your attorney? The Master or the student? Patrick Silva has over 20 years of DUI experience, he has been published in DUI reference books, he has spoken in front of hundreds of attorneys at conferences, taught classes to lawyers on his secrets and strategies, and has a nationally listened to podcast dedicated to teaching other DUI lawyers how to win.  (909)798-1500

​Call us at Redlands          909-798-1500

         San Bernardino         909-888-7992


Cut the Breath Results in Half


Welcome back to the DUI Trial Lawyers Academy. This podcast is brought to you by silvaandsilvalaw.com, great lawyers, helping great people, and now for your host, sought-after speaker, avid mountain bike racer and renowned DUI trial lawyer, Patrick Silva.
Patrick Silva:
Welcome back to the DUI Trials Academy. This is your host DUI trialer, Patrick Silva. In today's podcast we're going to be discussing breath, partition ratios and other breath variances it's are going to cause a false high reading. Let's start with a concept or an idea that the breath that the machine is testing does not always come from the deep alveoli air sacks, just as a quick a tutorial. So what are the alveoli air sacks? Theoretically, they're the smallest air sacks at the tips of your lungs, where the gas exchanges occur. Now, approximately 27 branches from the trachea all the way down to the alveoli air sacks occur. If you read Dr. Michael Hlastala and his name is actually a scene Michael, his last name is spelled H l a s t a l a. He is in, I believe the state of Washington, his field of expertise is lung physiology.
Believe he has dozens, if not dozens, of dozens of articles, but this one article was a invited editorial on the alcohol breath tests. And it was the journal of applied physiology in 2002. And, he's quoted and he says "the alveoli air does not accurately relate to the blood level because the exchange of alcohol from the blood to the breath in the lungs occurs in the upper airway, not the alveoli." So what is he saying? He's saying the partition ratio of 2100:1 that's allegedly set because that's where the gas exchanges occur. He's seen no, that's not right. If your gas exchange is currently upper airways, then you're going to have a partition ratio that's not correct. So lets kind of hit a couple of other ideas.
And, one of the other ones was a person with smaller lungs will have a false higher breath test. And, that quoted as saying "a person with a smaller lung volume must breathe farther into the exhale breath resulted in a greater BR AC compared to the true BAC." Now, I'm going to talk a little bit about some important quotes out of some well-respected articles, but let's go through the general idea or concept. If a person is blowing into a breath machine in the absorptive phase, before they reach peak alcohol concentration, their partition ratio is going to be changed and they're going to overestimate their true blood alcohol concentration. So it's important when you're building your timeline and your drinking pattern that you understand, Hey, it can take a long time before a person truly reaches their true BAC. Now, one of the sites at the prosecution always recognize, and this state's lab tech well recognizes Kurt M. Dubowski. And, it's a well cited article called, Absorption, distribution and elimination of alcohol safety aspects. Let's say 1985.
But, in that article, he's saying that it can take 14 to 138 minutes. So from 14 to 138 minutes before a person reaches their peak alcohol concentration, after the end of drinking or after there done drinking alcohol takes 14 minutes to basically well over two hours. It also, he talks about, "well, yeah, can take a long time," but he also states, its often impossible to determine whether the post absorptive stage has been reached at any given time. He says those factors make it impossible or infeasible to convert the alcohol concentration of the breath or urine to the simultaneous blood alcohol concentration with forensically acceptable certainty. So let's say that you're building your cross examination. You're going to start with, laying down with the foundation, is okay, Mr. Lab rat, Mr. State expert, we're trying to give an opinion that's forensically acceptable and has a measure of certainty.
So we want a answer that is certainty and which is forensically acceptable. Yes, yes, yes. They're going to answer that. And then you're established that well, we need to know whether Johnny is absorbing alcohol still at the time you blow into the breath machine or post absorbing. You're going to find that the lab tech is going to fight you on these numbers, because if they agree that during the absorptive phase and they should at least agree in during the absorptive phase is going to overestimate it. But they're going to say, Oh, it's not that, that big a deal or that much. But, there's a real good article by E. Martin or E. Martin and W. Moll, M O L L. It's called the pharmacokinetics of alcohol in human breath, venous and arterial blood after oral and ingestion. That's the 1984 article. But the quote out of that is that the breath results can be as much as a 100% higher than the blood level during the absorptive phase.
Yeah. Bingo. That's a great article. There's another great article by G. Simpson. It's called accuracy and precision of alcohol measurements for subjects in the absorptive phase. It's a 1987 article in the clinical chemistry journal. Basically, what they did and estates here. What they did is they had simultaneous measurements of breath, alcohol and venous blood alcohol concentration. And what it showed is that the actual venous blood alcohol can over SB overestimated by the breath alcohol, by more than a 100% for significance amount of time after drinking stops. And they had 4 different people, but they had maximum errors for the 4 individuals were plus 230 minutes, 190 minutes, 60 and 30. And then he's concluding that the magnitude of these errors indicate that the results from quantitative at dental breath, alcohol and night analyzers are far less accurate for the absorptive state versus the posted for absorptive state. Little tongue tied today.
But, what you're seeing is you can have a great cross examination and analysis on the absorptive phase, and you're going to build your cross-examination attacking the partition ratio during the absorptive phase. And that's if you get the right fact pattern. And then what you're going to face is the lab tech for the state is going to say, "well, it's all fine at 2100 covers 95% of all people." But you go back to, well, Kurt Dubowski read his articles, you understand his articles. You might've gone to the Borkenstein Institute in Indiana, and he's a teacher there. And he actually says that, hello, he's actually says that one single ratio conversion is not going to apply to all people. And that's in the article I said it earlier, the absorption distribution and elimination. And, what Dubowski actually concludes is he basically says the partition ratio of 15:55, 3005:1 will cover 99.7% of the population.
Let's say you got it an o8 case. Well, an o8 case and 1500 is basically 25% off the 2100. And, quick math, so your o8 takes you down to an o6. Now, if we go back to, when does a person reach their peak and I cited the Dubowski numbers, but there's another range where they said, Simpson states that while I range it absorptive times from 12 to 195 minutes has been reported from the data he examined. It appears to take about 120 minutes from the end of drinking for absorption to be complete in fasting subjects. So how many of us get clients to say, "Well, I haven't eaten all day." So you're going to know it's going to take about 120 minutes. You got two hours before they're completely absorbed, fully peaked. And before they could even hit the post support absorptive stage.
Yeah. Today is a little rough when I've been a little tired this week, but little tongue tied on this podcast. But you get the general idea of the power of partition ratio. All right. You know what to do? Put on the boxing gloves, climb into the ring [inaudible 00:10:15] Over now.

Thank you for listening to the DUI Trial Lawyers podcast. This episode brought to you by silvaandsilvalaw.com.

Patrick J. Silva - Attorney at Law

A Professional Law Corporation

DuiLawyerSanBernardinoCourt.com