Monthly Archives: May 2007

So If Breathalyzers Are So Accurate…

For decades police departments have sworn by the accuracy of breathalyzers, generally using blood tests only as a backup or where drugs are suspected.  And for those same decades prosecutors have been assuring gullible jurors that those machines are infallible — right up there with DNA evidence.  And breath testing is cheaper, faster and pain-free.  

 So why are police departments beginning to switch to blood tests?


Phoenix Police to Use Blood

Tests for DUI Stops

Phoenix, AZ.  May 11 — If you drive drunk, the Phoenix Police Department will stick it to you where it hurts.

The department is making the switch from the traditional breath tests to blood tests when they stop someone suspected of being under the influence.

Police say the reason is easy: the evidence is harder to disprove in court and it could be more accurate.

Sgt. Chris Moore said people who don't like needles shouldn't drink and drive, because they really don't have a choice…

He also said police can use reasonable force if they need to in order to get the blood. 

Funny how cops and prosecutors swear breathalyzers are deadly accurate beyond a reasonable doubt….until they switch to blood, which it turns out is "more accurate".   Sufficiently more accurate to justify dropping breathalyzers.

(Thanks to Andre Campos.)

.00% = Under the Influence of Alcohol

Never let facts get in the way of a drunk driving bust:

Man Passes Breathalyzer, Cited Anyway

Lancaster, OH.  May 8 â€” When Russell Errett went out to play a game of pickup basketball with friends April 19, he didn’t expect it to cost him thousands of dollars and end up in a court case. But that’s exactly where it is headed.

Errett, 50, was charged with operating a motor vehicle while intoxicated and weaving outside lanes of traffic.

“It makes no sense to me,” said Errett’s attorney, James Linehan. “He cooperated with police, took the breathalyzer test and scored zeros, and yet he was still cited for OVI (Operating a motor vehicle while intoxicated). Clearly he wasn’t intoxicated.”

A review of the police reports and the supplementary investigation report say Errett was polite, but failed the field sobriety test. Errett was then read his Miranda rights and arrested; his car was impounded.

Errett readily agreed to take the breathalyzer test, maintaining his innocence. He told the officer he had been confused and nervous when taking the field sobriety test.

When he took the test, the result came back with all zeros. He had no alcohol in his system…

Errett was given the ticket, had to put up a $1,000 bond, pay to get his car out of the impound lot and hire an attorney with his trial scheduled for later this month…

“In this case the officer had a scientific test, a scientific test which officers ask juries to believe everyday, which told the officer that my client was innocent,” Linehan said.  “And even with the knowledge that my client was innocent, he was still charged.”

Have you ever tried to take a field sobriety test — under field conditions?  As the studies have repeatedly shown, these so-called “tests” are designed for failure.  Of course, cops don’t like being told they’re wrong…and certainly not by a machine.

(Thanks to Bruce Korol.)

Tape Recording Under the Influence

I'll bet you didn't know it was a serious crime to have your tape recorder on during a DUI traffic stop:

Dover Man Charged With Taping His DWI Arrest

Rochester, NH.  May 9  –  A 48-year-old Dover (New Hampshire) man has been charged with tape recording his own drunken driving arrest in Rochester early today.

Police say they saw Christopher Power sitting behind the wheel of a vehicle with its motor running just before three o'clock this morning.

After speaking with Power, police charged him with drunken driving, and discovered a running audio recorder on the driver's seat. In addition to drunken driving, Power was charged with wiretapping.

I can see where cops wouldn't want any evidence of what really happens during a DUI "investigation".  Ask any LAPD cop.

How Accurate are Breathalyzers?

With more than a little federal coercion, all states have now passed laws making it a criminal offense to drive with .08% alcohol  in your blood. And most people suspected of violating that law are given breath tests to determine their blood-alcohol concentration (BAC). The breathalyzer will take a small sample of the suspect’s breath and estimate how much alcohol is in it — and then estimate how much may be in the blood. And what that machine says is pretty much the end of it. There will be no second tests. There will be no cross-examination of the machine.

Just how accurate and reliable are these machines that we have permitted them to become judge and jury?

To begin with, scientists universally recognize an inherent error in breath analysis, generally of plus or minus .01% in the reading. That means that if everything is working perfectly (an unlikely scenario), a .10% breathalyzer test result can be anywhere from .09% to .11%. This has been acknowledged by courts across the country (see, for example, People v. Campos, 138 Cal.Rptr. 366 (California) and Haynes v. Department of Public Safety, 865 P.2d 753 (Alaska);  in State v. Boehmer, 613 P.2d 916 (Hawaii), the courts recognized an even larger .0165% inherent error).

What does that tell us about the accuracy of these breathalyzers? Well, let’s again take a test result of .10%. Taking inherent error into consideration — and assuming the machine was working perfectly, the officer administers the test correctly, and the suspect’s physiology is normal and perfectly average — the true BAC could be anywhere from .09% to .11%. In other words, the true BAC can be 10% in either direction — or, put another way, anywhere within a 20% margin of error.

These machines have a 20% margin of error?

That’s right. A person accused of driving with over .08% BAC can be convicted by a machine which, if everything else is perfect, has a built-in 20% margin of error. Would you be comfortable with an airline pilot who worked with a 20% range of error? A brain surgeon?  A bank teller?  How about the evidence in a criminal case where guilt must be proven beyond a reasonable doubt?

But it gets worse….

Most states have standards for breath testing. Although some states only provide for a single breath test, most require that two breath tests be given — and the results must be within a given range.  In North Carolina, for example, there must be two test results within any group of three which fall within .02% of one another; if they are .10, .07 and .13, for example, the officer must start over.  In California, the officer can continue giving tests for as long as it takes until he gets two consecutive results within .02%; results of .18, .10 and .12, for example, would be a valid result.

Think about that for a moment.  Let’s take that California example.  And let’s say the officer gets a .10% reading on a test.  What must the result of the next test be to be acceptable?  Well, it can be .08, .09, .10, .11 or .12 — that is, anywhere between .08% and .12%.

In other words, the acceptable range of error is 40%!  And based entirely upon this, a defendant can be convicted of driving with over .08% blood-alcohol — and, further, legally presumed guilty of the separate offense of driving under the influence.

In a country where the legal standard is “proof beyond a reasonable doubt”, the legal standard in drunk driving cases is “proof with a 40% margin of error”.

Close enough for government work. 

The Hypocrisy Continues – MADD Award Winner Charged with DUI…

MADD Award Winner Charged with DUI 

Cincinnatti, Ohio.  May 4  –  A Cincinnati police officer who received an award from Mothers Against Drunk Driving has been charged with drunken driving.

Police in nearby Aurora, Indiana, pulled over Specialist Charles Beebe this week after a motorist reported that he had forced two vehicles off the road. Beebe failed a field sobriety test. The arrest report says his blood-alcohol level was tested at point-oh-eight, which is considered legally drunk in Indiana. He has pleaded not guilty and is free on 15-hundred dollars bond.

Beebe received a Top Cop award this year from MADD’s Southwestern Ohio chapter.