Accuracy of Breath Tests Being Called into Question around the Country

As a law firm that focuses on solving everyday people problems, one major problem affecting citizens is the accuracy of the Breathalyzers

According to the National Highway Traffic Safety Administration, about 1.5 million people are arrested in any given year for driving while under the influence.  Individuals are stopped by law enforcement for a myriad of reasons. If it is suspected that the driver of the vehicle has been drinking, they will be asked out of the vehicle to perform several field sobriety tests.  If the individual fails these tests, the individual will then be asked to blow into a breathalyzer.  If the results of the breath test are .08 or higher, you will be charged will driving while intoxicated.

For years, the breath test has been the bedrock of proving the guilt of an individual in the criminal justice system.  However, a recent New York Times investigation found that these tests are unreliable.  In New Jersey and Massachusetts alone, judges have thrown out more than 30,000 breath tests in the past year because of lax government oversight and human error.  The Times reviewed tens of thousands of pages of court records, contracts, confidential emails, and corporate filings and interviewed over 100 lawyers, scientists, executives, and police officers and found the following:

  • In the State of Pennsylvania, a county court judge called it “extremely questionable” whether any of his state’s breath tests could withstand serious scrutiny.
  • A panel of judges in Florida described their test’s breath test machines as “magic black boxes” with “significant and continued anomalies.”
  • Vermont’s toxicology lab examined machines from four manufacturers in 2005 and found CMI’s Intoxilyzer 8000 gave inaccurate results on almost every test. However, the device was being used in multiple states, including Mississippi, Ohio, and Oregon.
  • In 2009, Washington State spent over 1 million dollars to implement new machines and chose the Alcotest 9510 despite a report from their scientists that stated the machines “were not ready for implementation.”
  • In a court case in Colorado in 2016, it was discovered that there were widespread problems with how the state forensic lab implemented the use of more than 160 new Intoxilyer 9000s. A lab technician testified that in this defendant’s case, his manager ordered him to destroy records from the tests, as well as the manual for the Intoxilyzer, in case the defense attorneys tried to subpoena records.
  • In the Metropolitan area of D.C., Ilmar Peagle was hired in 2010 to test its Intoxilyers. Peagle found that every machine was generating results that were 20 percent to 40 percent too high.  Additionally, he found the chemicals being used to set up the machines were too old and lost their potency.
  • Last year, a judge in Minnesota found that the states breathe test machines were rounding up results, which falsely pushed some defendants over the legal limit.

Despite all of this, it is next to impossible to obtain a machine for inspection as the manufacturers will not sell them to the general public.  Defense attorneys have been fighting for years to examine the machines and their software forensically.  The reason is to attempt to inspect the codes which could reveal built-in flaws the devices use in their calculations.  Courts in New York State have repeatedly denied requests to obtain the machine codes. Dennis Nave, Managing Partner for Nave Law Firm, which also operates the DWI GUYS brand, feels that these inaccuracies are entirely unacceptable. Citizens should be demanding that more reliable testing be used in prosecuting these types of cases. If I were a defendant and worried about my license and my freedom, I would not want a machine with these types of errors determining my guilt or innocence. It is the job of Law enforcement and the DA’s office to prosecute these cases.   I do not believe it is too much to ask that they use the best evidence possible or the most reliable. It could be just as easy for law enforcement to request a blood draw.

Even with all the issues coming to light within the inaccuracies of the breath test, every state punishes drivers who refuse to take one when ordered by a police officer.  Law enforcement must ensure the accuracy of these tests as individuals’ lives and freedom are at stake. Mr. Nave states THIS needs to happen immediately to recodify the issues.

Do not drink and drive, however, if you find yourself in a position whether or not you should take a breathalyzer, call us at 1-800-DWI-TEAM.