Breathometers and breathalyzers are devices designed to estimate the blood alcohol content (BAC) in the human body. The term breathalyzer actually refers to several different types of devices, all of which analyze alcohol concentration by having a subject blow into the machine. Breathalyzer machines use a chemical reaction involving alcohol that produces a color change in proportion to the amount of alcohol in the body. Intoxilyzers detect alcohol content by the use of infrared spectroscopy, whereby BAC is measured based on a calculation of the absorption of infrared light. Alcosensors utilize fuel cell technology to capture BAC through the creation of an electrical current. These devices have typically been used by law enforcement for investigating suspected cases of driving under the influence (DUI) of alcohol. Recently, however, smaller and less expensive devices called breathometers have entered the market. These units are aimed at consumers who want to monitor their own BAC before driving or the BAC of those for whom they are responsible. While breathometers and breathalizers are generally used to enforce laws and ensure safety, there are privacy concerns related to the administration of these devices. This entry examines the use of breathalyzers by law enforcement, in schools, and in the workplace, before concluding with a glimpse at the future of breathometers and breathalyzers.
Many states attempt to prevent citizens from evading a breathalyzer by refusing to give consent to be tested. Such states have passed what are known as “implied consent laws,” which stipulate that a person operating a motor vehicle on a public road is considered to have given consent to blood, breath, urine, or saliva tests for the presence of alcohol if that person is involved in a traffic offense and a law enforcement officer has reasonable grounds to believe that the person is intoxicated. A person’s refusal to be tested is treated as either an admission of guilt or a separate offense that can result in driving license forfeiture. These laws have been upheld in courts against challenges that they violate due process, infringe on the right of self-incrimination, and impose unreasonable search and seizure.
States imposing implied consent laws for breathalyzer tests justify them on the ground that driving a vehicle is a privilege rather than a right. The implied consent is thus a condition for the enjoyment of the privilege, and such consent can be withdrawn by choosing not to drive. Critics argue, however, that driving is much more than a privilege; it is a necessity for many people. A person relying on a vehicle for transportation to work, child care, shopping, and many other essential life activities has no choice but to comply with whatever conditions the state requires. Consent, in this view, is not so much implied as coerced, and a person’s need to have transportation should not require the sacrifice of constitutional rights.
Public schools have often faced difficult choices in trying to balance the personal rights of students with the need to maintain safe school environments free of drugs and alcohol. In general, courts have been unwilling to sanction school policies that subject the student body to mandatory drug testing because such a requirement infringes on the protection against unreasonable searches granted by the Fourth Amendment of the U.S. Constitution. This judicial prohibition, however, has not been extended to students participating in competitive extracurricular activities. The U.S. Supreme Court has held that mandatory drug testing for such students does not violate the Fourth Amendment because a student’s privacy interest is limited to the public school environment. Moreover, students participating in extracurricular activities voluntarily subject themselves to intrusions on their privacy, which include being tested for illegal substances. Given that courts have allowed urine screenings for students taking part in extracurricular activities, it seems reasonable that breathalyzer tests for alcohol use would be permissible as well.
For students not engaging in extracurricular activities, courts have determined that the use of breathalyzers by schools is more restricted. In Anable v. Ford, a teacher approached a student after smelling alcohol on his breath and observing the student acting in a disruptive fashion. The teacher asked the student to submit to a breathalyzer test. The student initially refused but later consented to the test with his mother’s approval, and the test produced a positive result for alcohol. A lawsuit based on the test was decided in the school’s favor. The court held that the school did not need a search warrant to perform the breathalyzer test because there was a reasonable suspicion that the student was violating school policy. The court also ruled that the administration of the test did not pose a Fourth Amendment violation because the student and his mother had voluntarily given their consent to having it performed. While the court noted that a breathalyzer is not a particularly invasive test, it remains unclear whether a student alone can consent to it and whether the presence of school officials could interfere with the consent being voluntary.
Courts have recognized that employers have a legitimate interest in maintaining drug- and alcohol-free workplaces to ensure employee safety and improve work productivity. At the same time, courts have held that such interests must be balanced against the protections of the Fourth Amendment and the privacy rights of employees. As such, courts have generally looked at the type of work performed in deciding how breathalyzers can be used. Random or mass screenings of bus attendants, firefighters, police officers, and teachers, for example, have been deemed unconstitutional. Such employees can be subjected to breathalyzer tests only if there is a reasonable suspicion that an employee is under the influence of alcohol. Conversely, random or mass screening of jockeys, nuclear power plant employees, and prison guards has survived constitutional scrutiny. In these cases, courts have found the public and employer interests in a drug- and alcohol-free workplace more compelling. At the same time, courts have required such screenings to be supported by notification procedures, less intrusive testing protocols, and safeguards against discrimination in selecting employees for testing.
Breathalyzer technology continues to evolve, with new models being developed that can screen for drug use. Law enforcement may soon have units that can test for DUI of marijuana, a growing issue as states begin legalizing its use. At the same time, the privacy concerns raised by breathalyzers persist as society tries to balance the need for safe roads, schools, and workplaces with the protection of individual rights.
Eric C. Sands
See also Bill of Rights ; Crime Control ; Drug Testing ; Drug Testing Kits ; Privacy ; Search and Seizure
Anable v. Ford, 663 F. Supp. 149 (W.D. Ark. 1985).
Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822 (2008).
Borkenstein, R. F. and H. W. Smith. “The Breathalyzer and Its Applications.” Medicine, Science, and the Law, v.2/1 (1961).
Clark, Paul A. “Do Warrantless Breathalyzer Tests Violate the Fourth Amendment?” New Mexico Law Review, v.44/1 (2014).
Koebler, Jason. “New Breathalyzer Can Detect Marijuana, Cocaine, Heroin.” USNews (April 25, 2013). http://www.usnews.com/news/articles/2013/04/25/new-breathalyzer-can-detect-marijuana-cocaine-heroin (Accessed December 2014).