How to Beat a Breath Test

To understand this answer it is necessary to first understand some things about the science of breath testing.

As indicated in Arizona v. Esser, 205 Ariz 320 (2004) (Quoting Dr. Michael Hlastala):

In the “old paradigm” alcohol was thought to be exchanged between the blood and the breath in the alveoli, the tiny air sacs deep in the lungs, in the same manner as oxygen and carbon dioxide are exchanged between blood and breath in the alveoli.  The alcohol was thought to enter the breath in the alveoli in equilibrium with the percentage of alcohol in the blood in the pulmonary capillaries that line the alveoli.  The airways, comprising the mouth, trachea, and bronchi, were considered dead air spaces in which no significant alcohol exchange occurred.  Under the paradigm, the alcohol concentration of an exhaled breath from a subject with alcohol in his or her blood is expected by be initially very low as breath is expelled from the airways, to rise ad the exhalation begins to incorporate alveolar air, and, finally to level out at equilibrium when the exhalation contains only  alveolar air, at whit is termed the “alveolar plateau.  Id. at 3.

The idea here is that “deep lung air” is at equilibrium with blood alcohol because it is not often exchanged during regular breathing.

According to Attorney Tom Hudson, one of Florida’s top lawyers, you can stop the police from overestimating your breath alcohol by simply remembering two numbers, which are the number “3″ and then the number “2″.

As stated on Mr. Hudson’s web site:

Step One. Take 3 deep breaths before you blow.  If you hyperventilate three times before you blow into the machine, you will reduce your breath alcohol by as much as 55%. This occurs for two reasons.  First, the breaths cool off your lungs.  When the lung tissues are cooler, less alcohol goes from liquid form into vapor.  The result is a lower breath alcohol.  Second, the breaths clear out the alcohol from your lungs, filling them with fresh air.   

(By the way, the reverse is also true.  If you hold your breath for a few seconds before you blow, your breath alcohol will be increased.  So whatever you do, DON’T HOLD YOUR BREATH before you blow into the machine!!)

Step Two.  Blow out HALF  of your breath and STOP.  Half of a breath is all that you need to give a valid sample under the Florida protocols.   The Intoxilyzer 8000 requires only 1.1 liters of breath to register as “adequate volume.”  Blowing the minimum required can reduce your measurement by another 30%. How does it do that?  By avoiding that alcohol-saturated “deep lung air” that the police are trained to test.  The statutes do not tell them to test “deep lung air.”  The statutes tell them to test “breath.”  So why do they test “deep lung air” instead?  Because that’s where the most alcohol is!  It is a fraud, plain and simple!

There you have it.  The 3-2 Rule.   You can blow an adequate sample under Florida law, and not allow the police to skew your sample so it looks higher than it really is.  Sometimes blowing smart is a lot better than refusing to blow at all.

The amount of breath tested and the percentages stated above are not quite the same in Michigan because the DataMaster uses a slightly different formula, but the theory is identical, and so are the conclusions.

Dr. Hlastala provides another method that might beat a breath test.  According to Dr. Hlastala, there is a difference between nasal vs. mouth inhalation.  

Inhalation through the nose prevents uptake of alcohol from the mouth during inhalation, so exhalation through the mouth will provide a greater breath alcohol.  If a subject inhales through the mouth – after having taken several deep breaths (inhalation through the mouth and exhalation through the nose), the subject will always have a lower breath alcohol.

 So there you have it.  Two different but related and scientifically proven ways to beat a breath test.  But, even armed with this knowledge we agree with Mr. Hudson: when it comes to beating a DUI charge in Michigan your best bet is simply to avoid drinking and driving.  Your second best bet is to hire the Michael J. Boyle from the Barone Defense Firm.