Judge Throws Out 49 Breath Tests

Posted by Lawrence Taylor on May 20th, 2008

An Arizona judge threw out the breath tests in 49 drunk driving cases yesterday….because the manufacturer refuses to let the defense look into its machines.  Thank god for a few honest and gutsy judges still left…. 

I have posted in the past about a battle being fought in courts across the country — notably in Florida, Minnesota, New Jersey and Arizona — concerning the right of an accused to take a closer look at the all-important breath  machine.  Under our current legal system, that machine has essentially become the judge, jury and executioner.

Trial by machine.  But how can this be?

Let’s review the laws, which are essentially similar across the country now due to increased federal pressure and MADD’s influence on state legislatures.  Let’s assume you’ve been arrested for “drunk driving” and you take a breath test which gives a .09% blood-alcohol concentration (BAC) reading.

First, your license will immediately be seized by the officer and he will serve you with a notice of suspension from the DMV: the so-called .08% per se suspension.  That’s it.  And the only evidence to support this immediate suspension at the police station is…the machine.  In most cases, unless you appeal the suspension and are able to prove the machine was wrong, your license remains forfeited.

Second, you will be criminally charged with driving with .08% or higher BAC.  The only evidence for this in most cases will be…the machine.  The machine is rebuttably presumed by law to be reliable and accurate.  In other words, unless you are able to show that the machine is wrong, the jury is told you are presumed to be guilty

Third, you will be charged with “driving under the influence” (DUI), “driving while intoxicated”  (DWI) or “operating a vehicle while intoxicated” (OWI); each state uses different terminology.  The primary evidence for this charge will be…the machine.  Most states now have laws which impose a legal presumption of intoxication if the BAC was .08% or higher.

In other words, unless you are able to prove that the machine was wrong, the jury will be instructed that you are presumed to be guilty.

But it takes time to investigate the suspect in the field, transport him to the station and prepare the breath  test.  Commonly, this can take an hour or two, often more.  So…if your BAC was .10% at the station, what was it two hours later when you were actually driving?  We know that alcohol can take 1/2 to 4 hours to absorb, so the BAC may well have been lower when driving.  No problem.  Again, our state legislatures have relieved prosecutors of that awkward scientific fact, as the following statute from California exemplifies:


In any prosecution…it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her breath at the time of the performance of a chemical test within three hours after the driving.  California Vehicle Code sec. 23152(b)


Again, presumed guilty…unless you can prove the machine was wrong

Ok, so everything depends upon proving the machine was wrong.  How do we do that?

Well…there are two ways, really.  You can have your breath sample re-analyzed by an independent laboratory,  just as can be done with a blood or urine test. Or you can look inside one of these machines and inspect its brain — the software programs that run everything.

Fine.  Let’s try the first method: get the breath sample from the police and have it reanalyzed.  Except that the breath sample was thrown away.  In all police agencies today, the all-important breath sample is dispersed into the air — despite the easy availability of cheap capture devices.  When this constitutional denial of the right to access evidence was raised on appeal to the California Supreme Court, the conviction was reversed:


Due process simply demands that where evidence is collected by the state, as it is with the Intoxilyzer, or any other breath testing device, law enforcement agencies must establish and follow rigorous and sytematic procedures to preserve the captured evidence or its equivalent for the use of the defendant. People v. Trombetta, 142 CalApp.3d 138 (1983).


Not so fast, said the U.S. Supreme Court, which reversed the California Supreme Court and decided that to require saving the breath sample “the evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means.”  California v. Trombetta, 467 U.S. 479 (1984).  A classic Catch-22: you have to save the breath sample only if it clearly shows him to be innocent.  Why would you then be charged?

Result: no police agency in the U.S. today bothers to save the breath samples.

Hmmm….Ok, but at least we can take a look inside, can’t we?  I mean, we can see if the software running it is accurate and reliable, right?  After all, the U.S. Supreme Court attempted to justify its dubious decision by pointing out that the accused could always inpsect the machine itself:


To protect against faulty calibration, California gives drunken driving defendants the opportunity to inspect the machine used to test their breath as well as that machine’s weekly calibration results and the breath samples used in the calibrations.


Now, I’ve written ad nauseum in the past about all of the reasons why these devices are inherently unreliable and inaccurate.  See, for example, How Breathalyzers Work and Why They Don’t, Close Enough for Government Work, Why Breathalyzers Don’t measure Alcohol, The Mouth Alcohol Problem and Breathalyzer Inaccuracy: Testing During the Absorptive State.  Yet, they are cloaked with an aura of infallibility — to the extent of imposing presumptions of guilt.

Well, at least the Supreme Court says the accused citizen has the right to “inspect the machine”, right?

Wrong. 

This is the battle that is being fought around the country today…and, as usual when DUI is involved, largely being lost.  Problem:  the prosecutors don’t have the software code to turn over, nor do the police or the police laboratories.  The code inside of the machine is the property of the manufacturers.  Problem: the manufacturers have all refused to provide their codes, hiding behind the “trade secrets” theory.

Unfortunately for the manufacturers, the Supreme Court of New Jersey recently ordered one maker to turn their “secret” code over to the defense or lose its exclusive contract with the state.  The code was then turned over to defense attorneys, who turned it over to a specialized computer laboratory, which then turned over its findings.  As I layed out in an earlier post (Secret Software Code Finally Revealed),  the results indicated that the software was…a mess.  Nor was there nothing unique about the codes to justify characterizing as “trade secret”.  After pointing out numerous technical problems, the report concluded:


It is clear that, as submitted, the Alcotest software would not pass development standards and testing for the U.S. Government or Military. It would fail software standards for the Federal Aviation Administration (FAA) and Food and Drug Administration (FDA), as well as commercial standards used in devices for public safety…If the FAA imposed mandatory alcohol testing for all commercial pilots, the Alcotest would be rejected based upon the FAA safety and software standards…


No wonder the manufacturers didn’t want to let anyone look at what was inside their profitable little machines.

They shouldn’t worry.  Their machines will continue to be kept secret, breath samples will continue to be safe from re-analysis, test results will continue to be accepted by courts as proof beyond a reasonable doubt, and citizens will continue to be presumed guilty based upon them.

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