The Truth About Absorption Phase Readings
When I first stepped on the expert witness scene about 1.5 decades ago, I learned everything from Dr. Rose.
I then followed up with Dr. Labianca and Dr. Simpson after reading their papers on the subject of falsely high breath readings during absorption..
The defense bar didn’t even know about the defense of the falsely high readings in the absorption phase.
This is probablly because the former state lab techs turned defense “experts” that only know the Borkenstein propaganda never heard of it.
The Alcohol Breath Test, when administered in the absorption phase can read falsely high by several hundred percent.
This bench brief will be priceless in getting this evidence in.
You will be astonished by the quotes made by Dubowski and Jones.
[ATTORNEY INFORMATION]
Attorney(s) for Defendant
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF
| THE PEOPLE OF THE STATE OF CALIFORNIA Plaintiff(s) vs. Defendant(s). | Case No.: 25MTCM00297-01 TRIAL BENCH BRIEF: EXPERT TESTIMONY UNDER PEOPLE VS. VANGELDER DATE: TIME: DEPT: |
I. PEOPLE V. VANGELDER OFFERS A NARROW RULING THAT DOES NOT PRECLUDE EXPERT TESTIMONY REGARDING IMPROPER EMPLOYMENT OF BREATH TESTING DEVICES.
In People v. Vangelder (2013) 58 Cal. 4th 1 [Vangelder], the Defense expert “would have informed the jury that all results from breath-testing machines are unreliable” (Id. at 38, emphasis added) due factors present in every person: “individual breathing patterns (speed and depth of exhalation), body and breath temperature, sex, and hematocrit level (ratio of red blood cells to total blood volume) to the breathing pattern.” (Id. at 35-36.) Defense in Vangelder argued “all machines that sample and test breath-alcohol specimens” are unreliable for every breath specimen. (Id. at 36. [emphasis added.])
Vangelder only precludes these general attacks on breath testing with this wide approach in Vangelder: “a defendant’s expert witness may not invite a jury to nullify that determination in the manner at issue here.” (Vangelder, at pg. 38; [emphasis added].)
II, VANGELDER EXPRESSLY ALLOWS EXPERT CHALLENGES TO PARTICULAR MACHINES, CALIBRATION, AND EMPLOYMENT OF TESTING DEVICES
The California Supreme Court in Vangelder explicitly preserved a defendant’s right to challenge how breath testing was employed in their specific case. The Court clearly stated:
“The court made clear, however, that the defendant remained free to argue, and present evidence, that the particular machines used in this case malfunctioned, were not properly calibrated, or were not properly employed.” (Emphasis added)
The Court further emphasized this point by reiterating that “as the trial court observed, defendant remained free to argue, and present evidence, that the particular machines used in this case malfunctioned, or that they were improperly calibrated or employed.” (Emphasis added)
The Fifth District Court of Appeal in Freitas v. Shiomoto (2016) 3 Cal.App.5th 294 reinforced this principle, holding that a driver can attack the “particular machine used to test the sample malfunctioned or was improperly calibrated or employed.” The Court further specified that a driver could show “that a testing apparatus was improperly employed when the driver’s sample was tested.” This judicial protection of a defendant’s right to challenge how testing was conducted in their particular case should not be eroded.
III. FEDERAL CONSTITUTIONAL PROTECTIONS SUPPORT THE RIGHT TO CHALLENGE BREATH TESTS
The U.S. Supreme Court has recognized important constitutional protections regarding breath and blood testing in DUI cases. In Birchfield v. North Dakota (2016) 579 U.S. 438, the Court held that “the search incident to arrest doctrine permits law enforcement to conduct warrantless breath tests but not blood tests on suspected drunk drivers.”
This distinction underscores the recognition that even though breath testing is permitted without a warrant incident to arrest, defendants maintain rights to challenge the reliability and administration of such tests. The fact that the Supreme Court permits warrantless breath tests does not eliminate a defendant’s right to challenge how those tests were conducted in their individual case.
Justice Sotomayor’s opinion in Birchfield emphasized that “the Fourth Amendment’s prohibition against warrantless searches should apply to breath tests unless exigent circumstances justify one in a particular case.” This perspective supports the position that defendants must be permitted to challenge the methods used to obtain breath test results, particularly when those methods are flawed.
IV. SCIENTIFIC EVIDENCE CLEARLY DEMONSTRATES THAT BREATH TESTS DURING THE ABSORPTION PHASE PRODUCE FALSELY HIGH READINGS.
The science is undisputed that breath alcohol tests administered during the absorption phase produce falsely elevated readings. This is recognized by preeminent experts in the field, including those favored by prosecution:
A. Absorption Phase Evidence
The present case involves a client who was in the absorption phase, as evidenced by the officer’s observation of a “strong” odor of alcohol on the client’s breath. This indicates recent alcohol consumption with alcohol still present in the stomach. The presence of this strong odor is direct evidence that the client was still in the process of absorbing alcohol.
When alcohol remains in the stomach, it continues to emit an odor through the breath until gastric emptying occurs. This basic physiological fact is analogous to how garlic odor persists on the breath until the stomach is emptied. The continued presence of a strong alcohol odor is scientific evidence that the client was still in the absorption phase at the time of testing.
B. Scientific Consensus on Falsely High Readings During Absorption
Both defense and prosecution experts agree that breath testing during absorption produces falsely elevated readings:
- Dr. Alan Wayne Jones, whom prosecution experts frequently cite, explicitly acknowledged that “The BAC estimates derived from the breath are somewhat greater than the actual blood concentration for the first 90 min after alcohol intake. This corresponds to the absorption and distribution phases of ethanol metabolism.”
See Goldberg, L. (Ed.). (1981). Alcohol, Drugs, and Traffic Safety (Vol. 3). Almqvist & Wiksell International.
Dr. Jones further affirmed that “Blood alcohol estimates made from breath analysis during alcohol absorption will therefore be higher than the actual concentrations.
See Goldberg, L. (Ed.). (1981). Alcohol, Drugs, and Traffic Safety (Vol. 3). Almqvist & Wiksell International.
- Dr. Kurt Dubowski, another authority frequently cited by prosecution experts, concluded that “In a sense, when a blood test is allowable, an administered breath test is discriminatory, because in law-enforcement practice the status of absorption is always uncertain… one would expect a considerable frequency of instances in which individuals who were prosecuted after a breath test would not have been prosecuted had a concentration in venous blood been the only value determined.”
- See Mason, M. F., & Dubowski, K. M. (1974). Alcohol, traffic, and chemical testing in the United States: a resume and some remaining problems. Clinical chemistry, 20(2), 126-140.
Multiple independent scientific studies have confirmed these findings and documented the unreliability of breath testing during the absorption phase:.
- Martin, E., Moll, W., Schmid, P., & Dettli, L. (1984). The pharmacokinetics of alcohol in human breath, venous and arterial blood after oral ingestion. European journal of clinical pharmacology, 26, 619-626.
- Simpson, G. (1987). Accuracy and precision of breath alcohol measurements for subjects in the absorptive state. Clinical chemistry, 33(6), 753-756.
- Labianca, D. A., & Simpson, G. (1996). Statistical analysis of blood-to-breath alcohol ratio data in the logarithm-transformed and non-transformed modes. Eur J Clin Chem. Clin. Biochem. 1996; 34:111-117
VI. GOVERNMENT SCIENTISTS HAVE PROVEN THE FALSELY HIGH READINGS ON THE ALCOHOL BREATH TEST
Government researchers in Israel [which also uses the 0.08 blood alcohol concentration (BAC) limit
for driving as the United States conducted a double-blinded study to assess the relationship
between breath alcohol concentration (BrAC) and blood alcohol concentration (BAC). The study
was designed to simulate field conditions and minimize potential measurement bias.
The study included 61 healthy volunteers aged 21-37 years with body mass index ≤30 and no
history of alcoholism. Participants were recruited via advertisements on college campuses and
public internet sites. Jaffe, D. H., Siman‐Tov, M., Gopher, A., & Peleg, K. (2013). Variability in the
blood/breath alcohol ratio and implications for evidentiary purposes. Journal of forensic
sciences, 58(5), 1233-1237.
The conclusion of the study, however, was flawed and was biased in favor of the government that
sponsored the study and used a misapplication of statistical principles.
Fortunately, the study authors did publish their data and this allowed the correct analysis of the data
to be performed and published along with the original paper by OKORIE OKOROCHA, M.S.,
M.S., ESQ. who reached the following conclusion:
“This conclusion was based on the mean of all test results that were measured at several time points
after alcoholic beverage consumption. While well-meaning, we believe that using the mean
BAC/BrAC ratios to arrive at this conclusion is misleading and errantly interprets their data. The
data in fig. 2 clearly indicate that significant overall variability existed between BrAC and BAC
measurements obtained from any given individual, and this mismatch was oftentimes substantial.
For the 181 comparisons that were made, the BAC/BrAC ratios ranged from 1214 to 2859 (rounded
to integers). This range among individual measurements is profound, amounting to a 260% increase
in BrAC-estimated BAC levels…”
See Okorocha, O. (2013). Commentary on: Jaffe DH, Siman-Tov
M, Gopher A, Peleg K. Variability in the blood/breath alcohol ratio and implications for evidentiary
purposes. J Forensic Sci 2013; doi:. Journal of forensic sciences, 58(5).
VII. THE TESTIMONY OF OKORIE OKOROCHA, M.S., M.S., ESQ., IS ADMISSIBLE UNDER VANGELDER
Mr. Okorocha’s expert testimony does not constitute a generalized attack on all breath testing that would be precluded under Vangelder. Rather, his testimony focuses on the scientific fact that the client’s breath test was administered during the absorption phase, which constitutes improper employment of the testing device.
The fact that a breath test was administered during the absorption phase falls squarely within the exception clearly outlined in Vangelder—that defendants may challenge whether a breath test was “properly employed” in their particular case. The presence of a strong odor of alcohol and erratic readings on the breath test are scientific indicators that demonstrate the test was administered during the absorption phase, rendering the results scientifically unreliable in this specific instance.
This is not a general challenge to all breath testing, but rather a challenge to how testing was employed in this particular case under specific physiological conditions. Both California case law and federal constitutional protections support the admission of this expert testimony.
VIII. FEDERAL CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE
The U.S. Supreme Court has consistently recognized a defendant’s constitutional right to present a complete defense. In Chambers v. Mississippi (1973) 410 U.S. 284 and Holmes v. South Carolina (2006) 547 U.S. 319, the Court established that state rules of evidence cannot be applied in a manner that infringes upon this fundamental right.
Precluding Mr. Okorocha’s expert testimony would violate the defendant’s right to present a complete defense by preventing the jury from hearing critical scientific evidence about the unreliability of the specific breath test administered in this case. This is particularly true when the scientific evidence comes from the prosecution’s own most-cited authorities, who acknowledge the unreliability of breath testing during the absorption phase.
IX. CONCLUSION
The opinions of OKORIE OKOROCHA, M.S., ESQ., are entirely proper under Vangelder, as they address the improper employment of breath testing during the absorption phase rather than presenting a generalized attack on all breath testing. Both prosecution experts and independent scientists agree with Mr. Okorocha’s scientific assessment that breath testing during the absorption phase yields falsely elevated results.
California appellate courts have explicitly preserved a defendant’s right to challenge how breath testing was employed in their particular case, and federal constitutional principles further support the defendant’s right to present this defense. The Court should therefore permit Mr. Okorocha’s expert testimony regarding the scientific unreliability of breath testing administered during the absorption phase.
| DATED: May 6, 2025 | ____________________________________ |
