This in an important article, one that outlines the risks associated with breath testing during a pandemic. Is your client at risk in providing a breath sample? Is the officer at risk in taking one? Beyond the hype, what does the known epidemiology of disease transmission under similar circumstances tell us? This article will discuss how COVID-19 will likely impact alcohol and drug related criminal investigations, now and in both the foreseeable future and perhaps, the long term under our “new normal.”
The pandemic has impacted all aspects of our society – from how and where we work, how we go to school, attend court, or eat in a restaurant.
DUIs, DWIs, breath test refusal cases and DREs will not – and more importantly should not – be done the same way in the future. Your client’s physical response to breath or blood testing may be different. What officers have been trained to believe about drug related driving offenses may no longer apply. Even the frequent use of hand sanitizers – which we should all be doing along with wearing a mask and physical distancing – may impact blood testing and urinalysis.
Before we begin, I have one caveat. This article uses information that is available as of the end of September 2020. Much is currently unknown about COVID-19, and its long-term impact on humans won’t be known until, well… the long term. So, if you’re reading this a month or two from now, or a year or two, this information may have – and probably will have changed, perhaps drastically, as we better understand the overall effect of COVID-19 on humans.
The Potential for Disease Transmission
First, let’s discuss the risk of disease transmission through breath alcohol testing – particularly roadside testing using portable testing units.
The story is simple. Your client is stopped for a vehicle infraction or roadside sobriety check. A breath sample demand is made, and a Preliminary Breath Test (PBT) instrument produced. Your client refuses the test on the grounds of the potential for disease transmission.
Is this a reasonable excuse?
What are the disease transmission risks involved with providing breath samples into a PBT in light of the current international pandemic of coronaviruses and specifically Corona Virus Disease 2019 (COVID-19)?
Well, as with most situations, it depends…
- If we have a test subject (your client) with no predisposed medical conditions that make them unlikely or less susceptible to coronavirus transmission, and;
- If we have an officer who has taken all reasonable precautions to prevent the transmission of any communicable disease, including but not limited to:
- The use of appropriate Personal Protective Equipment (PPE)
- Disinfection of the PBT before each and every use
Then the disease transmission risk may be considered acceptably low.
The problem, of course, is that no one, other than those who have been exposed, infected, become sick (either symptomatically, or asymptomatically), and recovered and who now have COVID-19 antibodies are unlikely or less susceptible to getting COVID-19. Basically, you’re only truly safe if you’ve had it and recovered. We think… there are now a number of reported cases of persons who were infected, tested positive, recovered, and are now ill again with COVID-19.
If, on the other hand:
- Your client is immunocompromised
- Your client is on medication that suppresses their immune system
- Your client’s family situation includes:
- living in a multi-generational home with elderly family members,
- living with a person with a pre-existing, high-risk condition, or
- a child or spouse with a health condition
- Your client is a high-risk worker (essential service worker, health care provider, first responder, etc.)
- The officer produces a PBT, with an unverified level of cleanliness, not using any PPE, or minimal PPE
Then the disease transmission risk may be considered unacceptably high. This list is, of course, not exhaustive. There are any number of situations that constitute a “high-risk” background.
In addition to being designated in court as an expert in breath alcohol testing, I have some background in infectious disease control. I was the designated Chief Infection Control Officer for the Saskatoon Police Service from 1997 – 2002. I authored the Infectious Control Reference Guide and created the surrounding policy and training for police members regarding infectious control that was adopted by various police agencies across Canada. We were concerned with disease transmission from crime scenes, arrests, contaminated evidence, in the detention facilities, etc. I was a Primary Care Paramedic and served as the Chief Instructor in Emergency Response at both the Saskatchewan Police College and Saskatoon Police Service, and instructor for the First Responders program. I sat on the Instructor – Trainer’s Advisory Committees for both the Canadian Red Cross and the Saskatchewan Heart & Stroke Foundation, where we investigated disease transmission between participants during First Aid and CPR training.
How Coronaviruses Spread
For the most part, health officials think that human coronaviruses, including but not limited to SARS-CoV-2 (which causes the subsequent infectious disease COVID-19), cause infections of the nose, throat and lungs. Coronaviruses are most commonly spread from an infected person through:
- Respiratory droplets generated when a symptomatic or asymptomatic infected person coughs or sneezes
- Aerosolized droplets coming from a symptomatic or asymptomatic infected person’s exhaled breath from talking
- Aerosolized droplets inhaled into the lungs from a symptomatic or asymptomatic infected person
- Close personal contact, such as touching or shaking hands with an infected symptomatic or asymptomatic person
- Touching something infected with the virus, then touching your mouth, nose or eyes before washing your hands appropriately or using a hand-sanitizer
This is why the simple act of wearing a mask, washing your hands frequently, and not touching your face is so important. Yes, masks are uncomfortable, hot, and sticky. (And, no, they don’t lower your oxygen levels or increase your carbon dioxide levels.) They may lower your viral exposure, keeping you from getting COVID-19 in the first place, or reducing the severity of the disease if you do come in contact with a carrier.
Current evidence strongly suggests person-to-person spread is efficient when there is close or prolonged contact, without the necessity of actual physical contact. Again, keep in mind that First Responders, including police officers, are essential service workers who are at greater risk of being in contact with persons who are infected or potentially infected, and as such, are at greater risk of passing the virus onto others, including members of the public that they come into contact with during the course of their duties.
It is currently well established that the disease transmission of the virus occurs before the infected person becomes visibly symptomatic.
The dosage of the micro-organism required for transmission of the coronavirus is measured in microns. The size of the coronavirus itself is just 0.1µ (microns) in diameter. The strength and degree of transmission from an infected person to another person is considered very high, and the pathogenicity, or seriousness, of the resulting illness (COVID-19) is deemed extremely high.
Epidemiology and Breath Alcohol Testing
It must be recognized that both the disease transmission ratio of coronaviruses and the mortality rate of COVID-19 are higher than the seasonal flu. Transfer of the virus can occur from person-to-person, and from objects to a person. By its very nature, breath testing places the officer and test subject into close physical proximity, in violation of most health agencies’ guidelines of distancing at least 6 feet from one another.
The officer conducting the breath test at roadside will have their hand within 1-2 inches to the test subject’s nose and mouth. Potentially contaminated items (the hand of the officer, regardless of gloving, and the PBT used for the breath test) are located immediately adjacent to the test subject’s nose and mouth.
Let’s personalize this a bit to illustrate the transmission mechanism. I would like you to try an experiment at home. Go get a bottle of perfume or cologne, one that may not have been used for some time. Hold the bottle of perfume or cologne, used perhaps within the last few weeks or even a few months ago, under your nose. Without activating the pump, sniff around the spray tip. Can you smell the perfume? Congratulations! If that perfume was a virus, you’ve just introduced a viral agent into your nose, air passages and lungs. You may now be infected. It is that easy.
We don’t actually know the dosage required for infection, but recent studies in China found that people with more severe infections tended to have higher viral loads, another important reason for wearing your mask, which may cut down the amount of virus you receive – potentially below the infectious dose.
“The truth is, we really just don’t know… I don’t think we can make anything better than an educated guess.”
– Angela Rasmussen, Virologist, Columbia University, New York. (as reported in The New York Times, May 29, 2020)
The pathogen is proving the familiar adage in toxicology, coined by Paracelsus more than 500 years ago: “The dosage makes the poison”. For SARS1, the infective dose was considered to be just a few hundred particles. For MERS2, the dosage required is much higher, on the order of thousands of particles. The Coronavirus (SARS-CoV-2) is more similar to the SARS virus, and therefore, the dose may be just hundreds of particles. Nobody really knows for sure.
Regardless of gloving or the use of other (PPE), the officer’s hand and the PBT will be within the protective field of the test subject. Like our illustrative perfume, any contagion, including viral contamination, will be in the immediate vicinity to the test subject’s nose and oral pathway. This is currently identified as the most accessible route of entry of the coronavirus into the body of an uninfected person.
Additionally, the World Health Organization has established that the coronavirus can remain active on non-porous or hard-surface objects for anywhere from a few hours to several days. Many health agencies identify that these items include electronic devices such as cellular phones and television remotes. These are similar in design and operation to the PBTs used by police in the sense that they are constructed with a hard-plastic exterior, are used as handheld devices, and as with cell phones, are deployed in close proximity to a person’s face, nose, and mouth.
But wait – PBTs have a disposable mouthpiece for sanitary use…
Breath alcohol testing is unique in that the operator is attempting to obtain a sample of “deep lung” air from the test subject. This air sample is being obtained from the alveolar sacs of the person blowing into the PBT. Unfortunately, the alveolar sacs are precisely where the virus is resident in the human body, and the mechanism of carrying the virus (exhaling the deep lung air) brings the virus out into the open.
The disposable mouthpieces used on the PBTs are intended only as a means of providing a clean surface between the test subject’s mouth and lips, and the device itself. They do not provide any means of epidemiological protection in any other regards. Most disposable mouthpieces use a pass-through design, and do not incorporate a one-way valve to protect either the officer receiving the breath sample, or the person providing the sample.
Even the so-called “spit-trap” used in certain mouthpieces easily allows pass through of liquids, exhaled air and the potential for contamination, as shown in Figure 1. Disposable mouthpieces cannot be considered an effective barrier to disease transmission efficacious enough to prevent the transfer of viruses, including coronaviruses.
In March 2020, one breath testing manufacturer, Intoximeters, Inc., identified three main paths for the transmission of contamination during breath testing:
- Breathing aerosolized particles
- The breath test subject could be contaminated from particles from a contaminated instrument.
- The Breath Test Operator can become infected from an infected test subject.
- The test subject could be contaminated from an infected operator
- Skin contact with contamination from the breath sample.
- Skin contact with saliva or other bodily fluids deposited on the instrument.
As a result of their warning, Intoximeter, Inc. had established a specific recommended cleaning and disinfection timetable in the use of their instruments and had provided detailed instructions for both evidentiary units and roadside PBTs. They stated that their recommended procedures for disinfection would normally take between 10 – 30 minutes per device.
Withdrawing a Warning…
Notice that I put this in past-tense. These recommendations were posted on the Intoximeter website (in March 2020) but have since then been removed. This begs the question – Why?
Was there pushback from police agencies, worrying that by NOT following the recommended manufacturer’s procedures they would expose themselves, not only to the virus, but to liability for not following standard practice? The virus hasn’t changed. The threat hasn’t changed. Virus transmission understanding has not changed. Why withdraw procedures to decontaminate these devices?
Cross Contamination from Breath Testing Devices in the Clinical Setting
Currently, there is no known research on disease transmission during roadside breath alcohol testing. The closet analogy concerns pathogen transmission during pulmonary function testing using hand-held spirometry devices, commonly found in physician’s offices and pulmonary function labs, and performed routinely among COPD (Chronic Obstructive Pulmonary Disorder) patients.
I had the opportunity many years ago to perform pulmonary function tests on patients using these devices when I participated, as one of the principal researchers, on the ability of COPD or Asthma patients to provide breath samples into roadside screening devices, so I’m very familiar with their design. The spirometers are remarkably similar in form and function to hand-held PBTs.
Research over more than 20 years has shown that the potential for cross-contamination of pathogens between patient and operator, and more alarmingly, between patients being tested by contaminated spirometers has been established. The risk is of sufficient concern to require further research and recommendations for control strategies. Researchers Rasam, et al write, “Cases of cross infection acquired from the pulmonary function laboratory, although rare, have been reported from various countries” (Rasam, et al, 2015).
You should focus on that last part again, “…have been reported from various countries.” This is not a one-time case study. Multiple cases of disease transmission have been reported between patient and operator, and between patients, from multiple countries. So, it goes to reason, your client could conceivably become contaminated from viral matter on the PBT from the asymptomatic person who last provided a sample. Or three samples ago – meaning three others who recently used that PBT are also contaminated, including the operator.
Certainly, the counter argument is that the officer “disinfected” the PBT between breath tests. Keep in mind that these reported pulmonary function tests (the ones with documented cross-contamination) are performed:
- In clean, but more importantly – disinfected or sterilized clinical settings,
- Using medical personnel who have been
- Trained in epidemiology and infectious control,
- They have the ability to disinfect these medical-grade devices immediately,
- Using medical-grade disinfectants and sanitizers.
Contrast this situation with a police officer, at roadside, wiping down a PBT between breath tests, using cleaning items on-hand (as in little disposable towelettes), even if performed with the best of intentions. The decontamination and sterilization done in clinical settings still resulted in multiple documented cases of cross contamination, worldwide.
Decontamination and Cleaning of Hard-Surface Items, including Portable Breath Test Devices
The World Health Organization advises that coronaviruses are one of the easiest types of viruses to kill, as long as the appropriate disinfectant products are used according to the manufacturer’s directions. It is recommended that users clean high touch surfaces often, using either regular household cleaners or a solution containing diluted household bleach at a 0.1% sodium hypochlorite concentration. This is equivalent to just 1 teaspoon of household bleach per quart of fresh water.
This solution must be prepared fresh daily, and must, by necessity, be applied to the hard-surface item after each and every use. The surface must be sanitized with the disinfectant for at least one minute before being washed away by a clean and uncontaminated cloth. We do not know the measures taken by police agencies to ensure that PBTs are decontaminated properly between breath tests.
Even if frequent decontamination of the PBT is a policy of the police agency, the person providing the breath sample has no verification that this procedure has been properly performed, and all of the virus has been eradicated. Remember – the dosage of the micro-organism required for transmission of the coronavirus is measured in microns…
Again – Why did Intoximeter remove their disinfection instructions?
Also, keep in mind that the breath test operator can only clean the external surface of the PBT. The internal breath sampling ports cannot be adequately cleaned and disinfected in the field. The tubing and inlet ports are too small to allow access without specialized tools but are often found to be contaminated with saliva droplets from previous breath tests during annual maintenance.
Sort of like the aerosol pump on the perfume bottle… get the picture?
If the test subject were to inhale through the disposable mouthpiece, even momentarily to draw in enough breath to provide a suitable breath sample, they would inhale potentially contaminated residual matter from the PBT breath sampling assembly. You smelled the perfume, meaning you inhaled the perfume, into your body.
While one-way valves on the disposable mouthpieces would somewhat mitigate this potential area of contamination, the mouthpieces used on most handheld PBTs, as previously noted, use a flow through design, allowing the contamination to occur.
Internationally, health agencies currently advise that COVID-19 is a serious health threat, and the situation is evolving with new cases emerging daily. The risk of transmission and mortality will vary from community to community but given the increasing number of cases of both infection and loss of life, the risk to the world population is considered high. We have not seen epidemic precautions of this nature taken worldwide since the Influenza pandemic that lasted from January 1918 to April of 1920.
Argue if you will that the coronavirus risk has been overblown by the media and government response. I heard an epidemiologist interviewed early on in the crisis say, to the effect, that we will be successful at combating the virus if we look back on our response at a future point in time and think that we overreacted.
The consequences for under-reacting are too grave to consider. Remember the 1918 Influenza pandemic is estimated to have infected approximately one-third of the world’s population and killed perhaps as many as 50 million people – in four consecutive waves, with the second wave the deadliest.
Currently, the current risk of contamination of Covid-19 is considered elevated merely by going to a grocery store, to a family member’s home, or otherwise out in public, even as restrictions begin to relax. And with these relaxing restrictions, we are seeing an increased level of exposure, disease transmission and infection. Governments around the world have instituted physical distancing and isolation measures in response to the increased threat of virus transmission.
Police agencies have also identified breath testing as a risk factor in contracting COVID-19. Many have suspended roadside breath testing programs. Some have switched to taking blood samples or urinalysis under controlled settings back at the police station. In general, it is recognized that roadside breath alcohol testing places a risk to both the officer and test subject due to:
- The form and function of the equipment used,
- The lack of appropriate and available PPE that can be used during testing,
- The inability to confirm suitable decontamination of the breath testing device used,
- The close physical proximity of the operator to the test subject, and
- The overall nature of breath testing.
The only logical conclusion to draw is that persons receiving or providing breath samples for alcohol testing are at a substantially increased risk of potential contamination and transmission of the SARS-CoV-2 virus, which causes the subsequent infectious disease COVID-19. Couple that with the risk factors listed at the beginning of this article, and you have a recipe for disaster.
Does this constitute a reasonable excuse to refuse a breath test? That is a legal issue for you to argue. The risk factor, scientifically, is both identifiable and measurable.
I’m going to ask you again – Did you smell the perfume?
For more information on the effects of COVID-19 on forensic alcohol investigations, including a video presentation, numerous supporting articles, and special Counterpoint subscription pricing for TCDLA members, go to Counterpoint-Journal.com/TCDLA. Enter the code TCDLA2019 on checkout and receive 25% off all past volumes, or an annual subscription.
- “Coronavirus Disease (COVID-19): Prevention and Risks”, Public Health, Government of Canada , found at https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/prevention-risks.html?topic=tilelink on September 24, 2020.
- “Coronavirus: Police Scotland Reported to the HSE Over Breath Tests”, BBC World News, found at https://www.bbc.com/news/uk-scotland-52713404 on May 19, 2020.
- Hierbert, T, Miles, J & Okeson, G C, “Contaminated Aerosol Recovery from Pulmonary Function Testing Equipment”. Am J. Respir Critical Care Med Vol 159. pp 610-612, 1999.
- “How COVID-19 Spreads”, Centers for Disease Control and Prevention, found at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html on September 24, 2020.
- “Infection Control, Cleaning and Disinfecting, Intoximeters Handheld Breath Testing Instruments”, Intoximeters, Inc. March 2020.
- “Q&A on COVID-19”, European Centre for Disease Prevention and Control, found at https://www.ecdc.europa.eu/en/covid-19/questions-answers on September 24, 2020.
- “Q&A on Coronaviruses (COVID-19)”, World Health Organization, found at https://www.who.int/news-room/q-a-detail/q-a-coronaviruses on September 24, 2020.
- “Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19)” — United States, February 12–March 16, 2020, Centers for Disease Control and Prevention, found at https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm on September 24, 2020.
- Kim, Jeong-Min et al. “Identification of Coronavirus Isolated from a Patient in Korea with COVID-19”. Osong Public Health and Research Perspectives, Vol. 11,1 (2020): 3-doi:10.24171/j.phrp.2020.11.1.02
- Prabhu, M.B., Hurst, T.S., Cockcroft, D.W., Baule, C. and Semenoff, J., “Airflow Obstruction and Roadside Breath Alcohol Testing”, Chest 1991: Volume 100, pages 585-586.
- Rasam, S. A., et al, “Infection Control in the Pulmonary Function Laboratory”, Lung India, 2015 Jul-Aug; 32 (4): 359-366.
- Semenoff, J., “The Infectious Control Reference Guide”, Saskatoon Police Service, 1997.
- Semenoff, J., “Infectious Disease Controls and Police Response Issues”, presentations to the Canadian Police Association and the Saskatchewan Federation of Police Officers, Fall, 1997, Regina, SK.