In the above trailer for the movie Catch Me if You Can, Leonardo DiCaprio dawned the disguises of various professionals (e.g., pilot, banker, lawyer) to hide the fact that he was simply a teenager.  Initially, he made very modest claims, but as the movie progresses his hubris took control.  He made increasingly bold and increasingly risky claims to thwart the truth and to avoid the exposure that he was simply a teenager.

I submit that this is exactly what is going on today in the world of evidentiary breath testing for ETOH determinations.  What started out as a useful unproven construct to explain an observable phenomenon has now become scientifically untenable resulting in the proponents of the underlying supposed scientific theory, just like DiCaprio’s character, resorting to increasingly bold and increasingly risky claims that at the end of the analysis will result in the ultimate exposure for what it is:  FRAUD.

One of the biggest most persistent frauds perpetrated in Court every day for decades has been the promulgation, the propagation and the the persistence of the theory that is supposed to support evidentiary breath testing for ETOH determination in America and in the world.

It leads me to state with confidence: 

The underlying theory that evidentiary breath testing is supposedly based upon is scientifically unsound.

Because of this, the results, if accurate and if precise, are not due to the underlying operability or validity of the theory upon which this supposedly rests, but rather is based upon, and indeed is a result of a coincidence or worse yet random chance.

Any true scientist with even the most basic exposure to thermodynamics and Henry’s Law can see how it is flawed.

[Blogger’s note:  Please also see “Do Breath machines Always Flag Acetone and Diabetics?” which examines the non-specificity of full evidentiary breath test devices; also please see “Beat the Breath Test Machine or The Breath Test Machine Beats You” where we discus the very easy common causes of inaccurate and imprecise breath alcohol readings; please also see “Dude, I just got convicted by a breath test machine that was state-of-the-art in 1984” wherein we discus the ancient technology used in the most abundant breath test machine, the Intoxilyzer 5000; there are also Youtube videos on this subject where you can see the Effects of Residual Mouth Alcohol and How Simply Eating White Bread Can Create a False Positive Result]

So, let’s examine my bold statement together.

First what the government says:

Evidentiary Breath Testing is based upon Henry’s Law.

What science says:

Henry’s Law is a real principle of thermodynamics that is not really in dispute.  Henry’s Law holds that in a closed system at isothermic conditions (i.e., equilibrium) meaning that temperature, pressure and flow remain constant, then the partition ratio between the liquid phase and the gaseous phase (i.e., the headspace) remains constant and known making it possible to equate the amount of analyte of interest between the liquid phase and the gaseous phase due to this ratio.  Violate any one of the necessary requisites meaning if it is not in a closed system and if you change the temperature, pressure or flow, then Henry’s Law is violated and the partition ratio, which is the predictable relationship between the liquid phase and the gaseous phase cannot be known.

Translated for our purposes, according to the government, the breath test machine tests end expired air which is gaseous and assuming all of those variables remain constant then we can arrive at a partition ratio to relate that amount of ETOH in the gas to the liquid, meaning the blood.

The problem for the government:

Is that the lung parenchyma is not a closed system.  Additionally, no one ever exhales at a constant pressure or flow.  Furthermore, no one maintains the same temperature as they exhale.  Boyle’s Law instead explains best how human exhalation works.  Remembering the above, if any of those variables are changed or it is not a closed system, then Henry’s Law is violated.  There is no predictable and usable partition ratio.  Therefore, we cannot relate the amount of analyte of interest in the gas (i.e., the breath) to the liquid (i.e., the blood).

Any true credentialed scientist knows all of the above.  Yet, government scientists testify inconsistent with their knowledge every day in the United States.

Now the classic horn-book definition the common law elements of fraud are as follows:

Nine elements:

1. a representation of an existing fact;
2. its materiality;
3. its falsity;
4. the speaker’s knowledge of its falsity;
5. the speaker’s intent that it shall be acted upon by the plaintiff;
6. plaintiff’s ignorance of its falsity;
7. plaintiff’s reliance on the truth of the representation;
8. plaintiff’s right to rely upon it; and
9. consequent damages suffered by plaintiff.

So how is this not fraud?????

At the end of this simple analysis, I think we can all conclude that Henry’s Law and the science of thermodynamics is universally applied on the planet earth and that it does not suspend in the lung parenchyma.

At best, evidentiary breath testing is a screening device.  At worst, it is a magic box that acts like a dangerous random number generator.