As readers of this blog are aware, I’ve railed long and hard against the so-called “breathalyzers” (see, for example, ”How Breathalyzers Work — And Why They Don’t”). The number of citizens falsely convicted of DUI because of these gizmos is in the high thousands. A few days ago I commented about how some police agencies are finally abandoning these machines and turning completely to direct blood testing (“So If Breathalyzers Are So Accurate…”). Why?
Getting convictions in the ongoing â€œWar on Drunk Drivingâ€ depends upon the publicâ€™s faith in blood-alcohol evidence â€” particularly in these breathalyzers. And over the 37 years or so that Iâ€™ve prosecuted and then defended, prosecutors have always represented them to juries as deadly accurate and fail-safe â€” no matter what make or model the breath machine. State of the art. Yet, Iâ€™ve noticed an interesting phenomenonâ€¦..
The manufacturers keep changing them.
A whole lot of years ago, when I was dealing with the grandaddy of the breath machines, the Breathalyzer 900, these devices were presented to juries as ushering in a new age of highly accurate breath-alcohol analysis. And which scientific laboratory developed and manufactured these scientific wonders? Well, not exactly a lab. Actually, uh, Smith and Wesson. Yes, the manufacturer of that marvel of science, the six-shooter.
And, of course, there were endless problems with these machines, so Smith and Wesson modified it and offered the model 900A. Which continued to have problems, so S&W developed the Breathalyzer 900B â€” followed by the new, improved, â€œstate of the artâ€ and now truly foolproof Breathalyzer 1000. Which turned out to be even less reliable than the 900.
Of course, this led to the model 1100, followed by the absolutely-no-fooling-state-of-the-art Breathalyzer 2000. Which eventually led to Smith and Wesson finally throwing up their hands and selling out to a German company, National Draeger. (Incidentally, the old Breathalyzer 900s are still being used by some rural police departments today.)
Meanwhile, other corporations had smelled the government money. A new player, Omicron Systems, came out with a machine to compete with the Breathalyzer: the Intoxilyzer. Omicron then sold out to CMI, Inc., which produced the Intoxilyzer 4011 â€” offered as a vast improvement over the Breathalyzers. This model, like the Breathalyzer, was followed by a series of modifications and improvements (models 4011A, 4011AR, 4011AS, et al.) and, of course, finally by ditching the machine for their new, ultimate gizmo: the Intoxilyzer 5000. Truly â€œstate of the artâ€. Except, of course, it wasnâ€™t.
So back to the drawing board â€” and, after a series of modified versions of the 5000 over the years, the latest model: the Intoxilyzer 8000. Which, jurors are again assured, is completely reliable and deadly accurateâ€¦.until the next improved version. Predictably, the 8000 is receiving a less-than-entusiastic reception.
Meanwhile, other competitors decided that the sad state of breath testing presented opportunities. Intoximeters, Inc., was created and produced the Intoximeter 3000. Which did not fare well. This time Intoximeters, Inc., gave up relying solely on the underlying technology, infrared spectroscopy, and tried to integrate a simpler method involving electrochemical analysis. Result: the Intoximeter EC/IR. State of the artâ€¦.until the next improved model is offered.
Others smelled the blood in the water. Verax Systems produced the BAC Datamaster, then quickly gave up and sold out to another manufacturer, National Patent. And the German heirs to Smith and Wesson, Draeger, began marketing their improved version, the Alcotest 7110. And so onâ€¦.
Each of these devices, their manufacturers assured well-funded law enforcement agencies, was a great improvement over earlier models and competitorsâ€™ machines. And in each and every case, regardless of the machine being used, the prosecution would assure jurors that this machine was reliable, accurate and, in fact, â€œstate of the artâ€: based entirely upon its reading, they could convict the defendant with a clear conscience.
And when defense attorneys would point out the defects and problems, jurors would be assured that this was just â€œsmoke and mirrorsâ€ from sleazy lawyers. The defense would point out, for example, that the machine falsely reports a wide range of chemical compounds as alcohol. Acetone in the breath, for example, caused high readings. And prosecutors assured jurors that this was another defense lieâ€¦until the manufacturers developed and began marketing acetone detectors.
Then there were the studies indicating that radio frequency interference (RFI) was widely causing unpredictable fluctuations in test results. More smoke and mirrors from the defense, jurors were told. But soon manufacturers were marketing RFI detectors.
And the mouth alcohol problem â€” another baseless attack on the prosecutionâ€™s state of the art evidence, followed by another device developed by the machinesâ€™ makers: the mouth alcohol detector. Which didn’t work reliably. And so on ad nauseumâ€¦.
So what is the latest trend? Apparently, after all of those public reassurances, law enforcement is starting to give up on the machines. Abandoning the search for â€œstate of the artâ€, they are going in the opposite direction: cheaper, easier to use and even less accurate hand-held breath gizmos used in the field. And, as Iâ€™ve indicated in past posts, police are turning increasingly to direct blood analysis: cops jamming hypodermic needles into suspects out on the highways.
State of the art.