News 8’s Common Law attorney Luke Ellis welcomed criminal defense attorney Stephen Toland of the Toland Law Firm to speak about one of the most-asked questions from viewers.

The topic is breathalyzers and the question is: “If I’m pulled over and am asked to take a breathalyzer, is that something I have to do?”

Toland said it’s the question he’s predominantly faced with and the answer is no.

“The answer is an emphatic or an unequivocal no just because we have strong concerns about the accuracy of the breathalyzer machines that are being used here in Travis County,” he said.

Toland explained how a breathalyzer works: A breathalyzer machine is designed to measure your blood alcohol level by taking a breath sample from deep within your lungs. That registers a number on the machine that’s an alcohol units sample. That number is then multiplied by 2,100 – and that’s an average used by the breathalyzer devices. The number you receive is a partition ratio which becomes your blood alcohol level.

Toland, and many criminal defense attorneys, believe the breathalyzer is inaccurate. This is because the alcohol sample can often come from not within your lungs. It can often come from your mouth, throat or stomach – not your lungs.

“When you’re talking about this 2,100 partition ratio, if its multiplied by the mouth, throat or stomach, you’ve got huge problems with the accuracy there,” he said. “It’s common for people to have acid reflux or 40 or 50 percent of people process alcohol mostly from their mouth, throat or stomachs.”

Another problem is that partition ratios are fixed at 2,100, but according to Toland, sometimes that number should be 700 for some people and 3,200 for others.

The third problem relates to body temperature.

“It’s calibrated at 98 degrees – if it’s a tenth of a degree up or down from that it can have a drastic effect on the accuracy of the breath samples,” Toland said.

Of course, the best way to avoid a breathalyzer situation is to avoid drinking and driving.

Next week on Common Law, Toland returns to speak about other criminal-related issues.

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The material provided in The Common Law is for general informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult an attorney directly.