The New York Times just published a thorough review of what experienced DUI defense attorneys have already known in Illinois and throughout the United States: breath tests don't work. They aren't reliable. They produce inaccurate results. They shouldn't be used as evidence.
But what's worse: the New York Times uncovered rampant and extensive coverup of just how useless these machines are so that prosecutors nation-wide could go on using them to convict suspected DUI offenders. Here are just a few of the NYT's findings.
Measures to Keep Breathalyzers Out of the Hand of Defense Attorneys
In the report, the authors state how defense attorneys:
repeatedly tried to forensically examine the machines, especially their software. Inspecting the code could reveal any built-in flaws or assumptions the devices use in their calculations.
But the defense attorneys found it very difficult to obtain a machine on their own. In fact, according to the NYT, courts in six states denied defense attorneys; requests to obtain a breathalyzer to examine the code. Without this ability, a defendant loses his or her right to challenge the evidence obtained against him.
Then this: the New Jersey Supreme Court finally granted a defense lawyers' request for a machine. The software was analyzed and was found to have had:
thousands of programming errors.
But even then, the court deemed this specific machine, the Alcotest 7110, as "generally scientifically reliable."
Scientist after Scientist Confirms Breathalyzer after Breathalyzer Not Up to the Job
Here are a few examples of breathalyzers scrutinized by lab technicians who found the machines unreliable.
- A Vermont toxicology lab found CMI's Intoxilyzer 8000 as "unsatisfactory" and rendered almost no accurate results.
- Scientists found the Alcotest 9510 as an unsophisticated scientific measurement instrument that was "not ready for implementation" even though it was already being sent to police departments.
- A lab technician tested the Intoxilyzer 9000 and then was ordered by his manager:
to destroy the records from those tests, as well as the manual for the Intoxilyzers, in case defense lawyers tried to subpoena the materials.
These are just some examples in the New York Times article. It is by no means an inconclusive list of which breathalyzers are faulty and bad, but a disturbing suggestion of how rampant this problem likely is.
Police Departments Routinely Not Properly Calibrating Machines
To make matters worse, the police add injury to insult. They have failed – one department after another – to maintain these pieces of equipment. We know that breathalyzers do not work when calibrated properly, but imagine the results when the police fail to calibrate them!
At a police department in Washington, D.C., for example, an officer "routinely entered incorrect data that miscalibrated the machines." Further,
the chemicals the department was using to set up the machines were so old that they had lost their potency — and, in some cases, [the officer] had brewed his own chemical solutions.
The Key Takeaway
It goes without saying that the New York Times investigative report is stunning. It also goes without saying that if you have been arrested for a DUI and that arrest is based on a breath test, contact an experienced DUI attorney who understands how breathalyzers work and can point to their unreliability. It may make the difference between a conviction or not.