Matthew Malhiot ✉️. DWI Journal. https://doi.org/10.61874/dwij/XAWQ1863
Abstract
The breath alcohol test (BAT) is the most commonly used forensic test to estimate a person’s blood alcohol concentration (BAC) in the US. Despite individual states adopting per se laws making driving while having ≥0.08% BAC (or ≥0.08 g/210L breath) illegal, the US lacks national standards for breath alcohol testing. The lack of national standards for the BAT reduces confidence in the results. Many states do not implement basic quality assurance standards, such as obtaining duplicate breath samples. One way to overcome this lack of quality assurance is to tie federal funding from the Transportation Equity Act for the 21st Century (TEA-21) to quality assurance practices for the BAT.
Introduction
All states throughout the US have per se laws that establish that driving is a crime while having a BAC of ≥0.08% (or ≥0.08 g/210L breath). Yet, there are no national quality assurance standards mandated for the BAT. Each state establishes its own breath alcohol testing program. There are published recommendations, as described below, but no federally mandated standards.
In 1997, the Federal Government set up Section 1404 of TEA-21, establishing a new program of incentive grants (Under Section 163 of Chapter 1 of Title 23) to encourage states to establish a 0.08% BAC as the legal limit for drunk driving offenses.1 The grant authorized $500 million, over six years, to the states for passing 0.08% BAC per se laws. This was the Federal Government’s “carrot and stick” way of getting a national 0.08% BAC per se law passed in each state without a federal law or mandate.
The Federal Government has used the TEA-21 many times over the years to coax the states into implementing programs such as seatbelt laws, open container laws, zero tolerance for drinking drivers under 21, and many others.
The states have all passed the 0.08% BAC standard, and the National Transportation Safety Board (NTSB) continues to make recommendations to the National Highway Traffic Safety Administration (NHTSA) regarding safe BAC driving limits. For example, in 2013, they sought legislative authority to award incentive grants to states to encourage a new national per se BAC of 0.05% or lower.2
The Problem with Per Se Laws
Currently, per se laws mandate that a driver is in violation of the law if they drive with a BAC of 0.08% or greater. It does not matter how well or how badly a person is driving. The problem with per se laws is that the driver has no way to know when they are in violation of the law.
Cars have speedometers to let drivers know when they are driving too fast but do not have breath alcohol analyzers to let a person know when they are above the per se limit.
There are three basic per se limits in the United States for BAC:
0.08% for persons 21 years old or older driving a private vehicle
0.04% for persons 21 years old or older driving a commercial motor vehicle
0.02% for persons under 21 driving a vehicle
In most cases, the evidence of the alcohol concentration in court is a breath test result. The state’s per se laws and implied consent laws created “shortcuts” for the admissibility of the breath test result. These laws allow prosecutors to bypass the standard rules for the admissibility of scientific evidence in a criminal court.
No scientific foundation is established for the admissibility of the breath test result in driving while intoxicated (DWI) trial. The way the laws are written allows the breath test result to go into court with very little support for the result.
The Problem with Inconsistent Standards
Most states legislate that the breath test result is admissible if the established procedures are followed. The problem is that the procedures, breath testing instruments, protocols, calibration, sampling, and all other aspects of a breath alcohol testing program vary drastically from state to state.
In 2008, the National Safety Council (NSC), Committee on Alcohol and Other Drugs established what they deemed, “…the basic elements necessary for establishing quality assurance and fitness-for-purpose in evidential breath alcohol measurements.”3
The NSC published recommendations that the states should follow for a quality and minimum acceptable breath alcohol testing program to support the per se laws in the states. The recommendations are as follows:
Instruments should be operated and tests administered by trained and qualified BAT instrument operators.
Instruments should be approved by an appropriate agency and, if used in the United States, also appear on the National Highway Traffic Safety Administration’s Conforming Products List.
Testing protocols should employ a minimum pre-exhalation mouth alcohol deprivation period of 15 minutes.
Breath alcohol measurements should be conducted on at least duplicate independently exhaled end-expiratory breath samples; the breath sample results should agree with the applicable established and documented criteria.
At least one control analysis should be performed as part of each subject test sequence as an assessment of within-run accuracy and/or verification of calibration.
An ambient air blank/analysis should be performed before and after each breath and control sample analytical measurement.
Any non-compliance or non-conformity with established and documented evidential test sequence protocol criteria should require the performance of a completely new evidential test sequence.
Printout of all completed tests should show the results of all breath samples, ambient air analysis/blanks and control analyses performed during a subject test sequence.
Periodic calibration, verification of calibration and/or certification of instruments must be performed in conformance with the documented and approved protocol recognized by the applicable jurisdiction.
Periodic recertification of breath test instrument operators should be done in compliance with documented and established training criteria recognized by the applicable jurisdiction at least every five years.
A review of breath test cases from across the country shows that many states fail to comply with the recommendations of the NSC.
In 2008, the NSC made recommendations based on the legal ramifications of a BAT. They said:
The significant weight assigned to breath alcohol results, along with the serious consequences arising from conviction on an impaired driving offense require evidential breath alcohol testing programs to implement appropriate quality assurance measures.
In addition, in 1994, Dr. Kurt M. Dubowski published Quality Assurance in Breath–Alcohol Analysis.4 He listed six problem areas with state breath alcohol programs. The list includes:
Inadequate rules and regulations
Lack of a comprehensive quality assurance program
Lack of control test(s) accompanying every subject test
Failure to observe and adequately document a proper pretest deprivation-observation period
Failure to test duplicate breath specimens
Lack of periodic personnel training
In light of per se DWI laws, a reading above the legal limit often becomes the sole piece of evidence needed for a conviction. National standards for the BAT become crucial to ensure fairness. Standards help to ensure accuracy and reliability across jurisdictions, preventing potential wrongful convictions due to varying testing procedures and equipment.
The Solution: Mandatory Quality Assurance Standards
The lack of national standards continues to cast a shadow of uncertainty over the accuracy and fairness of BAT programs across the country. A solution to this problem is integrating quality assurance protocols into the TEA-21 incentive structure.
By tying federal funding to adherence to national standards, states will be incentivized to implement best practices and ensure a more consistent, reliable, and fair approach to the BAT nationwide.
Conclusion
The state of breath alcohol testing in the United States is characterized by a patchwork of inconsistent standards and inadequate quality assurance practices. The lack of uniformity in the BAT undermines its accuracy and reliability in a forensic situation. Tying federal TEA-21 funding to quality assurance protocols for the BAT would encourage states to adopt more rigorous standards and inspire greater confidence in the results.
Disclosures
The author serves as an expert witness in forensic breath alcohol cases.
References
TEA-21 - Fact Sheet: Safety Incentives to Prevent Operation of Motor Vehicles by Intoxicated Persons, https://www.fhwa.dot.gov/tea21/factsheets/n_163.htm (accessed 2 February 2024).
Reaching Zero: Actions to Eliminate Alcohol-Impaired Driving. NTSB/SR-13/01, National Transportation Safety Board, https://www.ntsb.gov/safety/safety-studies/Documents/SR1301.pdf (2013).
Harding P, Dubowski K, Anderson-Seaquist J, et al. Report of the subcommittee on alcohol: technology, pharmacology, and toxicology. National Safety Council Committee On Alcohol And Other Drugs, https://bcahs.indiana.edu/doc/harding-subcommitte (2008).
Dubowski KM. Quality assurance in breath-alcohol analysis. J Anal Toxicol 1994; 18: 306–311. http://dx.doi.org/10.1093/jat/18.6.306