Answer to Defense Use of Breathalyzer Memory: Turn it Off

Posted by Lawrence Taylor on April 13th, 2005

A couple of days ago I wrote a post entitled "Using Computers to Prove a Driver Didn’t Refuse Testing". I mentioned the growing problem of officers who claim that an arrestee "refused" to take breath tests, thereby triggering increased penalties — and avoiding unwanted low breath test results. I then discussed how some bright DUI attorneys were getting information from the breathalyzers’ memory banks to show that the officer in question had a disproportionately high percentage of arrestees who "refused". I also mentioned that, embarrassing as this has proven to the prosecution, "we can expect to see fewer police agencies entering refusal data into breathalyzers, preferring to rely instead upon the officer’s written report".

However, I didn’t consider the much simpler solution of just turning the memory off. Three days later (April 11, 2005), the following article appeared in The Barre Montpelier Times Argus:

MONTPELIER ‘ The Vermont Supreme Court has ruled that a data printout from breathalyzer machines is sufficient to prosecute drunken driving charges. The decision overrules a state Board of Health decision that said police would need a more direct reading from the memory function of the 66 Datamaster machines used by the Vermont State Police and other law enforcement agencies across the state.

The board had overruled Vermont Health Commissioner Paul Jarris, who had ordered that the memory function be turned off on the machines. Defense attorneys have contended data stored on the machine’s memory provides the most dependable information as to whether a machine was working properly at the time the breath tests were taken. However, the health department claimed that the cost of processing the information was too high and sought permission from the state’s highest court to again turn the machines memory function off….

The health department in 1999 started to receive many requests from defense attorneys who discovered that information from the memory function could prove to be valuable in court….

Better to destroy evidence than turn it over to the accused.

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