James G. Wigmore, the author of Wigmore on Alcohol: Courtroom Alcohol Toxicology for the Medicolegal Professional, has an interesting blog with articles on a host of issues related to DUI breath testing. His most recent blog post discusses the relevancy of forced vital capacity on the ability to provide a breath sample.
Click here to read the blog article - FVC and its relevance to the Criminal Lawyer.
The blog article discusses several studies on everything from the effect of lung disease to slipping dentures on a subject’s ability to provide a breath sample. In Florida, the Intoxilyzer 8000 will indicate a “Volume Not Met” or VNM flag if the breathalyzer shows that the subject did not submit a sufficient breath sample. The Florida Department of Law Enforcement (FDLE) has set at 1.1 liters of continuous breath during one sample.
But what if the subject’s failure to provide a sufficient sample is not a willful act? What if the subject was charged with a DUI refusal when the subject did not intentionally refuse to submit a sufficient sample? A variety of factors can cause an unintentional “volume not met” or VNM flag including:
- Age, health and gender;
- Diminished lung capacity;
- Improper or misleading instructions by the Breath Test Operator;
- Damages mouthpiece;
- Problems with the subject creating a proper seal between the lips and the mouthpiece;
- Slipping upper dentures.
Visit the new blog article by James G. Wigmore for more information on these studies and important defenses in cases involving the unintentional volume not met reading on the Intoxilyzer 8000 or other breathalyzer instruments.