DWI Breath Tests and Covid-19

Minnesota DataMaster DMT Breath Testing Procedures in the Time of COVID-19

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On March 20, 2020 the Minnesota Bureau of Criminal Apprehension (BCA) distributed a statewide memorandum to all law enforcement officers trained to operate the DataMaster DMT machines regarding breath alcohol testing and updated procedures in light of the novel coronavirus (COVID-19). Breath test results from the DataMaster DMT may be used by the state in DWI and Implied Consent cases to prove a driver’s alcohol concentration.

The DataMaster DMT operates by analyzing a driver’s exhaled breath with infrared light in a sealed chamber. The machine calculates breath alcohol content by a scientific process called infrared spectroscopy. For each sample, the subject must blow into a tube through a disposable mouthpiece. The mouthpiece has a ‘spit trap’ and is individually wrapped and replaced prior to each sample. In Minnesota, each test requires two breath samples.

Beginning with a disclaimer that the BCA “is not an expert” on infectious disease transmission, the memo acknowledges that there is a risk of virus transmissions associated with law enforcement interactions including during traffic stops and conducting breath tests.

To minimize the risk while administering breath tests on DWI arrestees without symptoms, the BCA advises that operators follow personal protections outlined in the Centers for Disease Control (CDC) Guidelines for Law Enforcement Personnel including, at a minimum, maintaining a proper distance, wearing gloves, washing hands immediately after a test is administered (or using hand sanitizer when hand washing is not possible) and avoiding the direct flow of the subject’s breath exhalation during the test.

Because the mouthpiece connected to the breath tube attached to the DataMaster DMT machine must be manually replaced after the breath sample is given, the BCA recommends that the operator either have the arrestee remove the mouthpiece and dispose of it as directed or remove it themselves with gloved hands, taking care to avoid handling areas where saliva or other bodily fluids may exist.

After each test, the BCA advises operators to use a disinfecting wipe to clean the DataMaster DMT and surrounding areas, including the exterior of the breath tube, touch screen, keyboard, and areas surrounding the machine as the exhaled breath sample is discharged in the rear of the instrument away from the operator.

The DataMaster DMT is manufactured by Intoximeters Inc. On its company website, Intoximeters cautions:

“All protocols and procedures should consider how to minimize the possibility that a subject can contract a disease in the process of providing a breath sample to a breath alcohol testing instrument. It is assumed that disease transmission could occur from an infectious microbe that was deposited on, or in the instrument from a prior subject, an operator or anyone else that has had contact with the device.”

Using CDC guidelines, the International Association of Chiefs of Police (IACP) has recommended the following strategies to reduce the risk of officer exposure when conducting breath tests, only some of which have been implemented by the BCA:

• Maintain a six-foot distance between the officer and the subject and keep closer proximity without Personal Protective Equipment (PPE) to less than 5 minutes total.
  
  
• Use appropriate precautions for breath testing and consider blood testing, if possible.
  
  

• Administer breath testing in an area with proper air exchange (where the driver would blow away from the officer), in a large room when possible, and with proper safety precautions including the use of disposable gloves, face masks and other PPEs.
  
  
• Ask the driver additional interview questions including:
  
  - Have you received any medical treatment related to COVID-19?
  
  - Have you been having any fevers or chills in the last few days?
  
  - Do you have any “cold” symptoms? Cough, runny nose, sore throat?
  

[If COVID-19 is suspected, IACP recommends that the officer contact a trained healthcare provider to assess and transport the subject to a healthcare facility,
if necessary.]

• Use proper handwashing/sanitizing upon completion of the contact with the driver.
  
  During these times, there is considerable fear and anxiety surrounding COVID-19 throughout every community. For DWI cases involving breath testing, where the virus is known to spread through airborne particles, the health and safety of both officers and drivers must come first.

If you find yourself facing DWI or OWI charges and need to explore your options for getting your driving privileges restored, our seasoned lawyers can help. Attorneys are available 24-7 — Call us at 612-334-3342.

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