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January 24, 2017
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Aug 23, 2016
Elwyn, Pennsylvania

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Classified 2874202
How Anthony got Convicted by a Machine?

Anthony is presently facing criminal charges for driving under the influence of alcohol.

Except that he wasn't under the influence of alcohol. He had one beer after work and was stopped at police car looking for speeders and drunk drivers who arbitrarily pulled him over. The officer smelled the alcohol on his breath and asked Anthony to step out of the car to take some field sobriety tests. He did fairly well on the tests but, to be sure, the officer asked him to breathe into the breath machine that had been set up at the checkpoint. The results: .09%.

Anthony was arrested for DUI, handcuffed and taken to jail. When finally released six hours later, he was given a notice to appear in court for arraignment on drunk driving charges.

What happened? How could Anthony have only consumed one beer but registered .09% on the machine — at least four times higher than would be expected?

Well, to begin with, breath machines (commonly referred to as "Breathalyzers", although there are many competing makes and models) are notoriously inaccurate and unreliable. Calibration, maintenance, repair and use by inexperienced or poorly trained officers are always problems. And there are inherent design defects, such as being "non-specific" for alcohol — that is, they don't actually measure alcohol; due to the nature of infrared analysis, they will report thousands of other compounds as "alcohol". Another recurring problem is "mouth alcohol".

What is "mouth alcohol" — and how could this have caused Anthony's false reading? The machine measures alcohol on the breath, and an internal computer then multiplies the reading 2100 times to get a reading of alcohol in the blood. This is because the amount of alcohol in the blood is greatly reduced as it crosses from the blood into the alveolar sacs of the lungs and into the breath; the average person has 2100 times more alcohol in his blood than in his breath (this varies widely among individuals, however, and is another inherent defect in the machines).

But what if the alcohol in the breath sample did not come from the lungs? What if the alcohol came from Anthony's mouth or throat? Then it will not have been processed through the body, into the blood and finally out through the lungs — and it will not have been reduced 2100 times. But the machine, being a machine, will always multiply it 2100 times. Result: false high reading and Anthony is facing DUI charges.

So what was alcohol doing in Anthony's mouth or throat?

Well, alcohol will usually stay in the tissue of the oral cavity or esophagus for about 15 minutes until it is finally diluted and flushed down into the stomach by saliva. So if Anthony had "one for the road" just before being tested, he could have a problem. Or the alcohol could have become trapped in dentures or gum cavities and lasted much longer. Anthony may have burped or belched within 15 minutes before taking the test, sending up alcohol from the beer in his stomach into his mouth and esophagus. But what actually happened was that Anthony suffers from a very common condition: GERD, or "gastroesophageal reflux disease". This causes "acid reflux", often experienced as heartburn.

Acid reflux is commonly caused by a "hiatal hernia" - damage to the pyloric valve separating the stomach from the esophagus. When the valve cannot close completely, then liquids and gasses from the stomach can rise into the throat and oral cavity, to remain there until once again flushed back down. Since a bout of acid reflux can be caused by stress, it is not unusual to find that people stopped by police officers for suspicion of DUI and subjected to field sobriety tests experience the condition.

Anthony is now ordered to breathe into the machine's mouthpiece. With alcohol from his stomach now rising into and permeating his mouth and throat, it is mixed with the breath passing from the lungs through the throat and mouth and into the machine. Since this alcohol is being multiplied by the machine 2100 times, it takes only a tiny — invisible — amount of absorbed alcohol to cause a disproportionately high reading. In Anthony's case, an "innocent" reading of perhaps .02% became a "guilty" .09%. And Anthony lost his driver's license….and now has to try to prove his innocence in court.

Prove his innocence? We are supposed to be presumed innocent in America. This is the notorious "DUI exception to the Constitution." Anthony is not presumed to be innocent as we all thought: Pennsylvania like almost all states legally presume a person is under the influence of alcohol if the machine's reading is .08% or higher.

Yes, we have a legal system where citizens can be convicted by a machine...a very fallible machine

When you are facing a DUI like Anthony, you need the kind of attorney who will leave no stone unturned in providing the best defense possible.

Call for a free consultation!

Kevin Mark Wray
102 East State Street
Media, PA
610 800 5487

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