November 22, 2014 • By Dennis Beaver

Today’s story will be of interest to anyone who has wondered if there is a way to “beat” a breathalyzer. In fact, there is, and we’ll reveal it in a moment.

But first, with marijuana use becoming legal in more and more states, when law enforcement DRE’s (Drug Recognition Experts) are asked what tops their wish list, “A marijuana breathalyzer,” is an almost instant reply.

“I can easily determine a blood alcohol level with a breathalyzer, and along with the other measures of intoxication, decide if an arrest for DUI is warranted,” a Los Angeles County Deputy Sheriff, told You and the Law, adding:

“Even with our advanced training, it is far more complicated to establish that a driver is under the influence of marijuana and to convince a jury. Cops all across America can’t wait for the day that we have a marijuana breathalyzer and credible standards for how much THC (the active ingredient in marijuana) is too much.”

Saying “don’t smoke and drive” isn’t the answer

“A breathalyzer tells us how much alcohol is in a person’s system now, and we know that it declines at a predictable rate over several hours. But THC is completely different, and it is important for anyone who uses marijuana to understand that it’s not like alcohol,” explains Denver-based Barry Knott, president and CEO of Lifeloc Technologies. His company is a leading world-wide supplier of breath alcohol testers.

“THC can be measured in saliva, blood and urine, but long after the effects have worn off, and even weeks after the person has used marijuana, its metabolites can be found. Existing tests provide results which often have no correlation with how the THC is affecting the driver, if at all. Just because evidence that at some earlier time marijuana was used — medically or otherwise — is not proof of being under the influence now.

“THC is detectable in the breath, just like alcohol, and so a marijuana breathalyzer would be of real benefit to both law enforcement and users,” Knott maintains, and he’s not alone.

With a significant increase in “pot” DUI’s after legalizing recreational marijuana use in January this year, the Colorado Office of Economic Development — in a matching grant — awarded Lifeloc Technologies $250,000 towards development of the world’s first marijuana breathalyzer.

“How far are we away from hearing a police officer asking us if we have used marijuana and would it be ok to blow into this little device?” we asked Knott.

“Probably two to three years from now, that’s our estimate, but it’s coming, that’s for sure.”

Blow below a .08 and still get arrested for DUI

“When it comes to an arrest for drunk driving,” Hanford-based CHP Public Information Officer Adam Baresi points out, “while blowing a .08 will almost always result in trip to jail, an officer does not need the results of a breathalyzer to make an arrest for driving under the influence.

“The decision is based on the officer’s observations of driving, the Field Sobriety Tests — often including what we call the PAS test, which stands for Preliminary Alcohol Screening, followed by an evidentiary breathalyzer at the jail or police department.

“It is possible to have a very low blood alcohol level, and still be charged with a DUI if the officer finds the subject to be an impaired driver,” Baresi notes.

A challenge to both law enforcement and defense attorneys are “functioning alcoholics” who have developed a great tolerance to alcohol, outwardly appearing quite normal and able to pass the Field Sobriety Tests, but driving at or over the limit. Taking those drivers off the road is one of the reasons .08 or more is a separate DUI violation, and where the breathalyzer has had a significant impact on public safety.

Can a breathalyzer be fooled?

“Owning a personal breathalyzer should not be seen as a way to drink and drive,” is the clear message sent by San Francisco-based Keith Nothacker, founder and CEO of BACtrack, one of the world’s largest manufacturers of breathalyzers.

“Knowing your blood alcohol level — or that of your guests — is important and a good reason to own a personal breathalyzer. With a .00 it is safe to drive. Or, find another way home,” Nothacker points out.

Often asked if there is a way to “fool” a breathalyzer, he replies: “No. Sucking on a penny, or using breath fresheners such as mouthwash, Binaca, gum or mints — none of these work and can even make the result worse.”

But there is one way to “beat” a breathalyzer which many attorneys who specialize in DUI defense recommend: Refuse the test.

And the result? You lose your license for at least a year.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.