From the early Drunkometerprotypes to today’s purportedly sophisticated breathalyzers, the police have been administering breath tests on suspected drunk drivers for decades and millions have been arrested on the results of these devices. A recent New York Times investigationrevealed that the alcohol breath tests devices used by law enforcement across the county are often unreliable and inaccurate. The study should have sent shockwaves through police departments and courts everywhere but nary a peep was heard. Drunk driving has been so stigmatized that even valid evidence that drivers may be arrested on inaccurate breath test results is just ignored. Of course, no one wants drunk drivers on the road, but that shouldn’t come at the expense of due process.

The New York Times investigation is alarming. The investigation reveals that the various alcohol breath test devices used by law enforcement are often improperly programmed, calibrated and/or maintained. And DUI defense attorneys have argued this for years.

Experimental tests on these devices have confirmed many times over that different results on the same subject, at the same time, are often found on different devices. For example, one device may register a 0.06% BAC, while another may register a 0.08 % BAC, resulting in very different consequences for the driver. Or, an inaccurate measurement could put the driver at a BAC level that is charged as an aggravating factor (BAC over 0.15%).

Often the technical discrepancies and defects found on these devices are known by the law enforcement agencies using them but are kept secret. For example, in Washington State, when that state’s aging devices were replaced with new devices, a court ruled that the software running the new devices must by reviewed. When the software underpinning the devices was reviewed, the experts concluded that the design was defective (and in fact, concluded that that the device is “not a sophisticated scientific measurement instrument” and “does not adhere to even basic standards of measurement.” ). Astounding as it seems, these preliminary findings were suppressed and even ordered destroyed (although a few of the preliminary reports did leak) and the study was stopped dead in its tracks by the manufacturer of the devices.

Sometimes, it is the law enforcement agencies own negligence and ineptitude that makes the devices  grossly inaccurate. For example, in Washington, D.C., a test of their alcohol breath test devices revealed that the results of every machine tested were 20 to 40 percent too high. It was discovered that the devices were regularly miscalibrated and that the chemicals used in the machines were often past their expiration date. Even more astonishing, these chemicals were sometimes “home-brewed” by the administrator who oversaw the program. There are many other alarming examples across the country of the inept administration of the breath test devices exposed in the New York Times article.

California has had its own skirmishes with these devices, but when inaccurate breath test evidence went challenged all the way to the  California Supreme Court, that court basically said, yes, perhaps it is true that the machines are inaccurate, but the evidence that the device is inaccurate is not admissible in DUI trials. In other words, the Supreme Court ignored the science for reasons that appear convoluted and contrived. Despite this confusing Supreme Court decision, it makes the defense argument challenging the breath test results based on scientific evidence that the device was inaccurate, very difficult. Moreover, California is the only state in the union that allows as admissible in court BAC evidence generated by the hand-held device (Alco-Sensor IV) that is used for road-side drunk driving tests, often referred to a preliminary alcohol screening test (PAS). These devices are known to be consistently inconsistent and unreliable. (All other states require evidence from a second breath test on a more reliable machine at the police station or a blood test.) A driver in California cannot refuse a chemical BAC test without risking additional refusal penalties, but the driver can refuse the PASand insist on either a breathalyzer test at the police station or a blood draw. Given that the only reliable and accurate way to measure blood alcohol levels is by analyzing the driver’s blood, this may be a driver’s best choice. Even if the driver knows he or she is probably over 0.08% BAC, any breath test—even one at the police station—could be inaccurate and could show a level over 0.15%, which is an aggravating factor carrying stiffer penalties, or over 0.20%,which can make a DUI a felony.

Orange County DUI defense attorney William Weinberg is committed to providing his DUI clients with the best defense available. He offers a free consultation to discuss the options presented on each individual case. You may contact Mr. Weinbergat his Irvine office by calling 949-474-8008 or by emailing him at bill@williamweinberg.com.



Posted in:

Comments are closed.