Colorado DUI Breath Testing
Driving Under the Influence (DUI) is a serious offense in Colorado, carrying severe legal and social consequences. A key element in most DUI cases is the evidence derived from breath testing, used to measure blood alcohol concentration (BAC) and establish impairment.
While breath testing is a cornerstone of DUI enforcement, it’s not without controversy. Errors in administration, device inaccuracies, and procedural flaws create significant opportunities for criminal defense attorneys to challenge the validity of results.
This is a comprehensive examination of DUI breath testing in Colorado from a criminal defense perspective. Read on for essential information from Attorney Cessna, working at The Law Office of Christopher H. Cessna located in Arvada, Colorado.
The Science of Breath Testing
DUI breath testing relies on the principle that alcohol in the bloodstream is partially expelled through exhalation. Devices like the Intoxilyzer 9000, commonly used in Colorado, analyze the concentration of alcohol molecules in a breath sample to estimate BAC.
Key Points in Breath Testing:
Partition ratio: Breath testing assumes a standard partition ratio of 2100:1, meaning 2100 milliliters of breath contain the same amount of alcohol as 1 milliliter of blood. However, individual ratios can vary significantly.
Infrared spectroscopy: Modern devices use infrared light to detect alcohol molecules. The light absorption pattern correlates to BAC levels.
Calibration and maintenance: Proper calibration and regular maintenance of devices are critical to assure accuracy.
While the science is well-established, breath testing remains an indirect method of measuring BAC, leaving room for error and legal challenges.
Colorado DUI Laws and Breath Testing
Colorado enforces strict DUI laws, defining impairment through both per se BAC limits and observations of impaired driving.
Legal BAC Limits in Colorado:
0.08%: DUI threshold for drivers aged 21 and older.
0.05% to 0.079%: Range for Driving While Ability Impaired (DWAI), a lesser charge than DUI.
0.02%: Zero-tolerance limit for drivers under 21.
Breath testing plays a pivotal role in determining whether a driver exceeds these limits. Under Colorado’s Express Consent Law, all drivers implicitly agree to submit to chemical testing—breath or blood—if lawfully arrested for suspected DUI.
Administration of DUI Breath Tests
Breath tests must be administered following strict procedural guidelines for reliability. Deviations from these protocols can compromise the results.
Key Requirements include:
Observation period: Officers must observe the suspect for 15-20 minutes before administering the test to make sure of no alcohol consumption, vomiting, or other actions that could skew results.
Approved devices: Only state-certified machines, such as the Intoxilyzer 9000, may be used.
Qualified operators: Officers must be trained and certified to administer the tests.
Multiple tests: Colorado requires two breath samples to assure consistency, with results that don’t deviate by more than 0.02%.
Failure to adhere to these requirements can form the basis for legal challenges.
Common Issues With Breath Testing
Breath testing isn’t infallible. Several factors can affect the accuracy and admissibility of results.
Physiological Variables
Partition ratio variance: The assumed 2100:1 ratio may not apply to all individuals, leading to inaccurate BAC estimates.
Mouth alcohol: Residual alcohol from mouthwash, burping, or dental work can artificially inflate results.
Medical conditions: Conditions like GERD (Gastroesophageal Reflux Disease) or diabetes can produce false positives due to alcohol-like compounds in the breath.
Device Limitations
Calibration errors: Machines not properly calibrated may yield incorrect readings.
Environmental factors: Interference from substances like acetone or paint fumes can affect results.
Procedural Errors
Incomplete observation periods, incorrect administration, or lack of proper documentation can invalidate results.
Legal Challenges to Breath Test Results
Criminal defense attorneys can challenge DUI breath test results on multiple grounds. The following are some common strategies:
Questioning the reliability of the device: Attorneys can request maintenance and calibration records for the breathalyzer used. If records show gaps or irregularities, the test results may be deemed unreliable.
Challenging the observation period: Failure to conduct a proper observation period can introduce the possibility of contamination, such as mouth alcohol or other interfering substances.
Demonstrating physiological factors: Presenting evidence of a medical condition or other physiological factor can cast doubt on the accuracy of the BAC reading.
Raising procedural violations: Colorado law mandates strict adherence to testing protocols. Any deviation, such as untrained operators or improper documentation, can render results inadmissible.
Exploring alternative explanations: Defense attorneys may argue that other factors, such as fatigue or medications, mimicked signs of impairment.
The Impact of Expert Witnesses
Expert witnesses are invaluable in DUI defense cases involving breath testing. These individuals, often forensic toxicologists or former law enforcement officers can provide technical information into the limitations of breath testing devices and methodologies.
Key Contributions include:
Explaining scientific principles: Educating the court on partition ratio variance, infrared spectroscopy, and related concepts.
Analyzing device records: Reviewing maintenance logs and calibration data for potential errors.
Evaluating test administration: Identifying procedural flaws that could compromise results.
The testimony of a credible expert can significantly strengthen the defense.
Alternative Evidence in DUI Cases
Breath test results are often supplemented by other evidence in DUI cases. However, these forms of evidence are also subject to scrutiny.
Field Sobriety Tests (FSTs)
Standardized tests, such as the walk-and-turn or one-leg stand, are used to assess impairment. These tests are subjective and can be influenced by factors like anxiety, physical disabilities, or uneven surfaces.
Officer Observations
Statements about slurred speech, bloodshot eyes, or the smell of alcohol can be challenged as subjective and lacking scientific validity.
Video Footage
Dashcam or bodycam footage can contradict officer testimony and provide an objective record of events.
Refusing a Breath Test: Implications
Under Colorado’s Express Consent Law, refusing a breath test has significant consequences, including:
Immediate license suspension for up to one year.
Mandatory enrollment in an alcohol education or treatment program.
Use of refusal as evidence of guilt in court.
While refusal eliminates direct BAC evidence, it doesn’t assure a favorable outcome, as prosecutors may rely on other evidence to prove impairment.
Defending DUI Cases Without Breath Test Evidence
When breath test evidence is unavailable due to refusal or other reasons, defense attorneys must rely on other strategies:
Challenging probable cause: Demonstrating that the initial stop or arrest was unlawful.
Disputing observational evidence: Arguing that physical signs of impairment were due to factors other than alcohol.
Highlighting lack of evidence: Emphasizing the absence of scientific proof of impairment.
Colorado DUI Penalties and Breath Test Results
The penalties for DUI in Colorado vary based on BAC levels, prior offenses, and aggravating factors.
DUI Penalties:
First offense:
Up to one year in jail.
Fines ranging from $600 to $1,000.
License suspension for nine months.
Second offense:
Mandatory jail time of at least 10 days.
Fines up to $1,500.
License suspension for one year.
Third or subsequent offenses:
Up to two years in jail.
Fines up to $1,500.
License suspension for two years.
High BAC levels (0.15% or above) or refusal to test can result in enhanced penalties.
Policy and Reform
Breath testing technology and DUI enforcement policies are subject to ongoing debate and reform. Issues include:
Device standardization: Advocating for more accurate and consistent devices across states.
Reducing overreliance on breath tests: Encouraging the use of blood tests, which are more accurate but less convenient.
Addressing implicit bias: Making sure DUI enforcement practices are applied equitably across all demographics.
Contact The Law Office of Christopher H. Cessna
The Law Office of Christopher H. Cessna serves clients throughout Arvada, Denver, Lakewood, Wheat Ridge, Berkeley, Westminster, Sherrelwood, and Aurora. Contact certified DUI expert, Christopher H. Cessna, for more information.
