February 28th, 2010
Washington State DUI laws are among the strictest in the nation. Like most states, the legal limit is .08% but the reading is produced by testing breath alcohol, not blood alcohol. Breath alcohol does not impair a driver; it is only alcohol in the blood that impairs a driver. Thus, a blood test would be the most direct and accurate way to measure the alcohol in a DUI suspect's system. For a number of reasons, our laws provide that the test of a DUI suspect's alcohol level will be done by taking a sample of breath only, unless certain circumstances (such as inability to blow or vehicular assault arrest) apply. Thus, the vast majority of DUI cases in Washington State are premised upon a breath test reading of .08 or higher.
When one drinks, the alcohol is absorbed by the body and eventually gets into the bloodstream. That same alcohol gets into the breath of a person through the interaction of the lungs and the bloodstream. It is a well known fact, however that body temperature affects how much alcohol is passed from the blood to the breath. For instance, if a DUI suspect drank enough beer to produce a blood alcohol reading of .07 (under the legal limit) you would think that the breath alcohol reading would be .07 as well. If the subject had a fever, however, the breath alcohol reading would be higher, perhaps over the .08 legal limit. This is not a theory but it is a scientific fact.
A study by G.R. Fox and J. S. Hayward published in 1989 in the Journal of Forsensic Sciences investigated whether breath testing inaccuracy would result if a subject's body temperature was raised by spending some quality time in a hot tub. The study concluded that an elevated body temperature after hot tubbing did result in breath test readings that were significantly higher than blood tests taken at the same time. The study recommended that breath testing machines be equipped with a device to monitor the temperature of the breath of a DUI suspect when blowing into an evidential breath testing machine such as the Datamaster.
Has anyone hot tubbed their way into a DUI arrest and convcition in Washington State who would have been innocent had they not elevated their body temperature? We will never know because the breath test machines used in Washington State for DUI convictions do not measure breath temperature and DUI officers are not required to take the subject's temperature before administering a breath test.
Our firm is committed to providing effective representation for DUI charges arising in Washington state from Seattle to Bellingham and locations elsewhere in the state. We welcome your call. (425) 451-1995