Think about the ways our society has changed since the onset of the COVID-19 pandemic. What kind of messages do you hear? What do you see? Do you hum “happy birthday” as you wash your hands a hundred times a day? Many people are now wearing masks and gloves for protection from the virus and some even do so when they are alone in their own cars. The Center for Disease Control and Prevention (CDC) has laid out guidelines that recommend us to practice “social distancing” by staying at least six feet away from other people while in public; and we’ve all become familiar with the taped lines in the middle of grocery store checkout lanes that indicate proper spacing. COVID-19 has changed the way our everyday lives look, but I cannot help but think about how all these changes, particularly, are going to impact DWI breath testing.
Our clients have two options when it comes to consenting to the government’s quest to obtain evidence of ethanol in the client’s system: blow or bleed. Many people, me included, are deathly afraid of needles and would opt for the less invasive and much quicker approach of providing a breath sample. For some people, providing a breath sample feels much safer than providing a blood sample, or at least it did in the past. Now, all I can think about is how dangerous the process of taking a sample of a person’s breath has become during COVID – for both the person blowing into the breathalyzer and the officer taking the sample.
Who is our Client?
As we always do with this type of work, must consider whether our clients are immunocompromised, whether our clients are on certain types of medications that may suppress their immune system, and our clients’ lifestyles. Some researchers have found that COVID-19 could be disproportionately affecting people from black, Asian, and minority ethnic communities.1 We also know that the criminal justice system seems to disproportionally target low-income people and black and minority ethnic communities. Many of our clients have little access to healthcare, masks, or gloves. Many of them are not able to work from home or keep their children out of childcare facilities. Some of our clients have recently been forced to be in unsafe settings like hospitals, jails, halfway houses, or homeless camps where they could easily have been exposed to COVID-19 or picked up other diseases that could compromise their immune systems. We know that our clients are living in a fluid, changing world and that many of them are high-risk for COVID-19 exposure, and worse, COVID-19 complications.
The CDC suggests COVID-19 will infect the human body through the nose, throat, and lungs. These are exactly the areas used to submit a sample into the breath machine. The CDC reports COVID-19 can spread from one infected person to another by respiratory droplets from a person sneezing or coughing. The CDC also reports that aerosolized droplets exhaled by an infected person’s breath may also transfer the disease. Touching or shaking hands with someone who is infected, and touching your mouth, nose, or eyes without properly washing your hands or using a disinfectant will increase the probability of COVID-19 spread.
Considering how COVID-19 is transmitted between people, how can we possibly justify breath testing at this time? To highlight just how dangerous breath testing is during the current pandemic, let’s walk through the standard process of breath testing.
Breath tests are often administered in a small room with very little ventilation inside of a jail. By design, the officer who administers the test must stand within six feet of the subject providing the specimen. The breath test machine is equipped with an attached tube that has a disposable mouthpiece for each person who will blow into the device. The officer will either hold the tube to the subject’s mouth while the subject blows for a required amount of time, or the officer will instruct the subject to hold the tube themselves.
Where are the safeguards to prevent the spread of COVID-19? Is disposing of the mouthpiece between subjects sufficient to prevent infection? It is likely not. A closer analysis of the process illustrates the ability of the virus to live in the hose of the breath machine and within its chamber. To obtain a “valid” breath sample, each subject is required to blow into the hose of the machine for approximately seven seconds. In these seven seconds, the aerosolized particles of breath and droplets of saliva will enter the tube and stay there. To prevent transmitting the disease from one subject to another, the breath test technician would have to dismantle the machine to completely disinfect it. Considering the number of DWI arrests made on any given day, this does not seem feasible and the spread of COVID-19 could become rampant from only one source of equipment within a community.
In the process of collecting a breath specimen, the breath test operator is at risk for COVID-19 infection just as much as our clients. The more times the operator touches the machine, the more they increase their chances in becoming infected and the potential chain reaction of transmitting the disease to others becomes significant.
The intent of this short piece was to highlight that an area of evidence collection that has already become technologically obsolete (did you know all they’re really measuring is how much light is passed through when someone breathes into the machine?) is now also extremely dangerous. Yes, this may mean we will have more blood cases. Yes, I am still afraid of needles. That being said, as a defense attorney, I would rather make the government actually prove a defendant’s blood alcohol content (BAC) through scientifically validated lab testing than allow them to continue pushing cheaper, less accurate, and now dangerous breath tests. I hope this article highlighted the need for reform in this area of the law. Be well out there, and don’t blow.
- See Tony Kirby, Evidence mounts on the disproportionate effect of COVID-19 on ethnic minorities, The Lancet Respiratory Medicine Vol. 8 Iss. 6 (May 8, 2020), available at https://doi.org/10.1016/S2213-2600(20)30228-9.