Breath Test Reliability Challenged

The New York Times recently published an article challenging the reliability of breath tests used in DUI prosecutions nationwide. While the reporter appeared to conclude that breath tests could be reliable, the article also found that they often could not be counted upon in practice. Problems occurred in Massachusetts, Pennsylvania, Washington and numerous other states, and affected breath test equipment manufactured by almost every leading company. In some states, fundamental flaws in breath testing have led to the dismissal of thousands of convictions.

What are problems with breath testing equipment? How were they uncovered?

Earlier this month, the New York Times published a comprehensive report documenting numerous problems with breath testing, technology that is central to DUI enforcement and prosecution in Arizona and across the country. These problems – usually discovered only after years of concealment and litigation – were so disturbing that Courts have been throwing out testing results in record numbers – more than 30,000 in New Jersey and Massachusetts alone.

In Washington, the state failed to test the software of its new fleet of “intoxilyzer 8000” machines, although one state scientist reported that they were “not yet ready for implementation.” Six years later, a security consulting firm was permitted to examine the software by court order and found it to be defective. Among other things, the device did not measure breath temperature, although this factor could cause inaccurate results in a large number of cases. The State could have purchased devices with this sensor but opted for a less expensive machine instead, as did most jursidictions. Also, the intoxilyzer 8000 had a calculation error that could cause the machine to inaccurately round up results.

In Colorado, a defendant fought off DUI charges by demanding disclosure about the state’s recently deployed “intoxilyzer 9000” fleet, which showed serious flaws with the machines. A state lab technician testified that his manager ordered him to destroy records of testing conducted on various devices the state had considered purchasing. The reason for this order was to prevent defendants from obtaining the test results. The same technician testified that the lab falsified records to show that the state properly conducted pre-deployment calibration. Had the records been truthful, they would have shown that numerous unqualified personnel – including an intern and sales manager – had conducted the calibrations.

Elsewhere, police “routinely entered incorrect data” and failed to conduct proper maintenance, which inflated breath test results by as much as 40%. This went on for at least 10 years. In Massachussetts, breath testing machines failed to shut down and print an error message when they produced different results on an identical sample. There was no written procedure for testing breath testing machines. And the state lab had concealed records of hundreds of failed calibrations. After hearing this evidence, a judge threw out 8 years of tests – more than 36,000 in total. Also, in New Jersey, the State supreme court threw out breath tests in more than 20,000 DUI cases when It learned that a police officer had not calibrated machines correctly and then falsified records to cover it up.

The upshot of these cases is that technology is only as good as the people and systems using it. Breathalyzers can accurately gauge alcohol content. But where authorities use slipshod procedure, fail to supervise or forgo needed safeguards, the same devices can result in unfair convictions and ruined lives.

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Michael Harwin

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