Report: Breathalyzers Outdated, Unstable, Unreliable

Posted by Lawrence Taylor on June 13th, 2007

Unique among criminal offenses, a citizen accused of drunk driving faces trial by machine.  If the breathalyzer indicates a blood-alcohol concentration of .08% or higher, he will usually be charged with two offenses:  driving under the influence of alcohol and driving with a BAC of .08% or higher.  Amazingly, he will be presumed by law to be guilty of both offenses (see my earlier post ”DUI and the Presumption of Guilt”) and the burden of proof will be shifted to the accused (see “If You Can’t Prove It, Make the Defendant Disprove It”).

Prosecutors continue to assure jurors that these state-of-the-art breathalyzers are highly accurate scientific instruments — so accurate and reliable that they can feel comfortable finding the defendant guilty beyond a reasonable doubt based solely upon the machine.

And yet….Law enforcement agencies are beginning to abandon them in favor of blood tests (see “So If Breathalyzers Are So Accurate…”).  Just how accurate and reliable are these “state-of-the-art” breath machines? 

Not very, according to internal documents from the State of Virginia’s Department of Forensic Science. 

Attorney Robert F. Keefer of Harrisonburg, Virginia, filed a demand under the Freedom of Information Act for records concerning the machine used in that state, the Intoxilyzer 5000 (the most commonly used machine in the country over the past 15 years).  Keefer was finally successful in obtaining internal documents from the Department that were submitted in support of an application for funding to replace the breath machines used throughout Virginia with newer models.  The following are direct quotes from those documents:

Funding of this request will allow the agency to replace instruments (Intoxilyer 5000 instruments) that are 9-10 years old and for which replacements are not available.  These instruments are outdated and the manufacturer is no longer maintaining parts and not capable of fully supporting them since current instruments demonstrate two further generations of technological advancement.

In reponse to the request form’s question, “What are the expected results to be achieved if this request is funded?”, the following response was given:

To replace outdated, unstable and unreliable breath alcohol instrumentation used by police officers throughout the Commonwealth to certify whether a driver is or is not impaired.

Unstable and unreliable.  But do you think this is what prosecutors in Virginia tell juries?  Of course not.  They tell them exactly what they always tell them:  accurate, reliable, state-of-the-art proof…guilty beyond a reasonable doubt.

And do you think it is just Virginia that uses the Intoxilyzer 5000?  It remains one of the most commonly used machines in the country (including by my own home town cops, the Long Beach Police Department).

So how many thousands of innocent American citizens do you think have been wrongly convicted based upon these marvels of science?  And how many more will continue to be?

  • barockoiu

    Mr. Taylor hello. Impressed to find your interesting blog.

    I am an Australian man, living in Australia, and was caught DUI in May 2006. I was fined 800 australian dollars about 700 US, and it was my first offence. My licence was cancelled for 13 months. I was forced to pay a further 130 dollars for a ‘drink driving course’, an eight hour forced training course. Then I had to pay 70 dollars to the court for the privilege of convincing the judge I was not a habitual drinker, then 40 dollars for a plastic licence card with my photo on it. For the next three years I must have a zero bac. My bac was .10 and the legal limit in my state of victoria is .05

    The law was changed on January 1 this year, if I committed the same offense, I would be forced to have an interlock for six months also.

    If I had have been six months older at the time I was detected DUI I would not have had to go to court and ‘ask for my licence back’

    Interlocks in my state have a 400 dollar install fee, and a monthly ‘rental’ fee of 180 dollars.

    There was a case of a man who was poor and whose car was worth 6000 dollars, was stolen and he was held liable for the 20,000 dollar interlock device. He was never advised that he needed to insure the device, nor was he informed of its alleged ‘value’.

    There is no competition in the shrouded state controlled ‘rental’ market of interlock devices, and also sirens are fitted to cars to embarrass the driver if he blows a BAC into the interlock. The device requires the driver to stop and pull over and blow again every ten minutes during an hour of driving.

    In my home state of Victoria they are also doing now random drug swab saliva tests for cannabis and mdma, and meth

    police in australia don’t need probable cause to pull a driver over

    and opening the door at your home is legally an invitation for police to enter your home

    all relicenced drink drivers who attend a forced education course have to also allow the police to arrive unannounced at thier home, invite them in, and ‘talk’ about thier ‘alcohol habits’

    You have a bill of rights. We don’t.

    Keep updating your blog sir, it is important work.

    I firmly believe australia will have a global zero BAC within 20 years.

  • Trooper5157

    Surely there are legitimate impaired, “drunk”, drivers out there. Equally as sure is that there are well trained, professional, police officers out there. Is it possible that Mr. Taylor could ever envision an absolutely valid DUI arrest?

    Rather than mock officers who focus their efforts on DUI enforcment (“supercops”), Mr. Taylor could take some time to consider that possibly, just maybe, one of his clients may actually be guilty.

  • Trooper5157,

    If I understand your (rhetorical) question, you are suggesting that I present a complete course in correct DUI investigation with a single blog post. Perhaps you can appreciate the futility of that when I point out that much of my 1242-page book deals with that question.

    I take your “question” as to whether I can envision any DUI arrest as valid to be similarly rhetorical. My answer, however, is that cops are human: many are poorly trained and/or less than conscientious, some are incompetent, lazy or dishonest. Let me ask you in return: Do you really believe that all DUI arrests are valid? That all officers are competent, well-trained and honest in their reports and testimony? And if not, then who — if not a defense attorney — will ever reveal that in any given case? And what — if not the prospect of cross-examination — will ever serve to motivate cops to do things right?

    Yes, I believe the majority of those arrested are probably guilty. And after 37 years of prosecuting and defending, I also believe that there are more innocent people arrested for this offense than for any other. And I believe the level of competence among officers handling DUI investigations is generally lower than in other areas of law enforcement.

    Every attorney in my firm is law enforcement-certified in operation of PAS/PBT breath alcohol devices. Every attorney in my firm is NHTSA-certified in standardized field sobriety tests. And few of the officers they are cross-examining are. Why not?

    So, Trooper, maybe the answer to your rhetorical question about how I would “suggest to a police officer how fair and accurate DUI arrests can be made” is also a bit rhetorical: Read my book, and get at least the training my attorneys get.