NY Times Investigation Reveals the Unreliability of Breath Test Devices

Most people understand the drill – either through personal experience or through the numerous TV and films involving police and drivers suspected of driving while drunk. If the police think you were driving under the influence of alcohol, they stop your vehicle and administer a few field sobriety tests.

If you fail the tests or the police have other reasons to believe you were driving while intoxicated, you’ll be given a breath test. The breath test is given either where you were stopped or at the local police station. In some cases, the police may obtain a warrant to give you a blood test.

A new investigation by the New York Times studied thousands of court document pages, business records, and the contracts breath test makers had with the local police. The researchers interviewed 100 police officers, scientists, and lawyers. Their results were alarming: the reliability of breath test machines nationwide is in serious doubt, even though the investigation reports that police departments swear they’re accurate.

Breath device findings in the NY Times story

A few of the locations where breath test machines were found to be invalid included:

• One Intoxilyxer breath machine was found by a Pennsylvania judge to provide incorrect blood alcohol content (BAC) results when the BAC was under. 05 or over .15, because the makers of the device failed to obtain the correct certifications.
• In Florida, a judicial panel discovered, alarmingly, that when one machine was clearly giving incorrect results, technicians tried to privately fix the machines by drilling a hole into part of the machine – without disclosing the inaccuracy of the machine or the validity of the quick fix.
• In the nation’s capital, one official found that the Intoxilyzer breath devices his police department used gave BAC results that were off by as much as 40%.

“Judges in Massachusetts and New Jersey have thrown out more than 30,000 breath tests in the past 12 months alone, largely because of human errors and lax governmental oversight. Across the country, thousands of other tests also have been invalidated in recent years,” stated the report.

Additional findings by the investigation showed that many breath test devices:

• Had faulty software
• Were being used by police officials who weren’t properly trained on how to use the machines
• Were not calibrated property
• Used stale chemicals which gave incorrect results

In some jurisdictions, the safeguards which were installed to help ensure the accuracy of the breath tests were removed. Further, in many instances, the ability of defense counsel to conduct independent investigations of the breath test devices (which can cost up to $10,000 for one device) were thwarted.

What the study means for defendants accused of driving under the influence (DUI)

The investigation is raising opportunities for experienced DUI defense lawyers. These opportunities include:

• Contesting the results of breath tests, especially if the machines being used are ones mentioned in or similar to the New York Times study.
• Appealing convictions, when timely, if someone has been recently convicted of a DUI based on the admission of a defective breath test result.
• Challenging whether the driver’s license of a DUI defendant can be suspended for refusing to take a breath test, if the breath test in itself would have likely yielded faulty results.

These breath test defenses are in addition to other DUI defenses, such as contesting whether the field sobriety tests were administered properly.

At the Law Office of Barry, Barall, Taylor & Levesque LLC, we have the skills and resources to challenge every part of the prosecutor’s case. This includes working with breath test professionals when necessary. It also includes contesting the reason for the stop, filing motions to suppress evidence obtained improperly, and negotiating plea arrangements where possible.

We have offices in Hartford and Manchester. Call us at 860-649-4400 or complete our contact form to schedule a free consultation.