All states now have two drunk driving laws: (1) driving under the influence of alcohol (aka “DUI”, with local variations, such as “driving while intoxicated” or “DWI”), and (2) the so-called per se law of driving with .08% or higher blood-alcohol concentration (BAC). Unless you refuse to take a chemical test, you will be charged and prosecuted for both offenses — and can be convicted of both.
The various models of breath machines (commonly — and inaccurately — referred to as “breathalyzers”) used to obtain the BAC are, obviously, critical to the drunk driving case. As for the per se offense, the only evidence of the crime is the machine: if the machine says .08% or higher and the jury believes it, the defendant is guilty. In effect, if you are accused of driving with .08% BAC, you will face "trial by machine" — and you will not be able to confront your accuser.
It gets worse….
Even as to the DUI charge, the readings will be considered presumptive: that is, if the machine's reading is .08% or higher, the jury will be instructed by the judge that the defendant is presumed to be guilty — and he must be found guilty unless he can prove his innocence. See Whatever Happened to the Presumption of Innocence?.
These machines are all-important: they determine guilt or innocence. But despite the manufacturers refusing court orders to disclose the software that runs the machines (see What Are Breathalyzer Manufacturers Hiding?), they continue to assure us that the things are “state of the art”. So how accurate are they?
Lab Error Could Affect Hundreds of Orange County DUI Cases
An Orange County Crime Lab error leads to inaccurate blood alcohol test results that could affect hundreds of DUI cases, officials say.
Orange County, CA. Nov. 10 — The Orange County Crime Lab produced inaccurate blood alcohol test results in 2,200 driving-under-the-influence cases filed by prosecutors this year — mistakes that could affect outcomes in dozens of cases.
The Orange County Crime Lab produced inaccurate blood alcohol test results in 2,200 driving-under-the-influence cases filed by prosecutors this year — mistakes that could affect outcomes in dozens of cases.
Prosecutors in recent days sent letters to people charged with driving under the influence, including 900 whose cases resulted in convictions. The letters advised them that their cases were among those with miscalculations.
Crime lab officials said the "human error" occurred over nearly five months and led to mistakes in the forensic examination of blood alcohol content. But they insist the miscalculations were so few that they affect only about 200 cases. As few as 20 people could see their blood alcohol test levels drop below 0.08%, California's legal definition of DUI impairment.
But veteran DUI attorneys across Orange County said flaws with the lab's basic testing probably will affect many more cases because sentence enhancements and negotiations are often based on how far over the legal limit a motorist was determined to be.
"If it took them nearly five months to figure out this mistake, what else is there?" said Virginia Landry, an Orange County defense attorney known as the "DUI Queen." "Everyone wants the roads to be safe. But this is a forensic nightmare with a lack of integrity in the process."…
So much for "trial by machine".