As I’ve mentioned often in the past, the evidence in a drunk driving case depends upon the breathalyzer. In most states, the suspect faces two separate criminal charges: (1) DUI or DWI (Driving Under the Influence or Driving While Intoxicated), and (2) driving with a blood-alcohol level of .08% or higher. The first case relies heavily upon the machine; with the second charge, the evidence consists entirely of the breath test results. In other words, the reading of the breathalyzer must be so accurate and reliable that by itself it must constitute proof beyond a reasonable doubt.
Does it?
Not even close, although juries continue to be infatuated by the seemingly scientific nature of these machines. As a few of my past posts have shown, however, it is little more than pseudo-science. See, for example, How Breathalyzers Work (and Why They Don’t), Why Breathalyzers Don’t Measure Alcohol, Breathalyzers and Radio Frequency Interference and Breathalyzers: "State of the Art"?.
Just the ravings of a DUI defense attorney? A few more posts on massive failures across the country: Attorney General Finds Widespread Breathalyzer Inaccuracies; Police Shut Down All Machines, Inaccurate Breathalyzers Cast Doubt on 1,147 DUI Cases in Philadelphia, 400 Wrongly Convicted in Washington: Faulty Breathalyzers and Another Widespread Failure of Breathalyzers.
Want a more recent example?
Sarasota State Attorney Sending Out Notices to People Who Took Breath Test on Faulty DUI Machines
Venice, FL. Oct. 12 — The majority of the alcohol breath testing machines used to measure a person’s blood alcohol content in Sarasota have been out of calibration for the past two and half years. One judge in Venice has already said he would not accept the results from one breathalyzer in that city. Now, there are more problems.
The attorney who discovered the problem in Venice is sort of a research guru. When he discovered the problems with Sarasota’s Intoxilyzer 8000, he started doing research on the other machines using the state’s own testing results. He was astounded to see the results, and the fact that prosecutors around the state continued to take people to court with questionable evidence.
"Certainly by now the State Attorney is on notice there is a problem here with every breath test in the state of Florida," says attorney Robert Harrison.
Harrison’s research showed 40 to 50 percent of the machines were out of calibration.
"Sarasota is much worse than 40 percent, but being 40 percent or 50 percent wrong is totally unacceptable," he says.
(His client) knows firsthand. He submitted to a breath test on a faulty Intoxilyzer 8000 and couldn’t provide an adequate sample. His case was thrown out of court, but he lost his license for a year and had his life turned upside.
"Somebody is going to have to straighten this out, because it is really not fair to people. I’ve been told there are only two machines used in the court system, the breathalyzer and the electric chair, and neither one will prove you innocent," says (the client).
The Florida Department of Law Enforcement, which is in charge of the DUI program, insists there is nothing wrong with the Intoxilyzer 8000 even though internal reports show problems and judges have thrown the results out of court.
"I’ve never seen them say they did anything wrong. They just say the court didn’t understand what was happening," says (the client).
Robert Harrison is convinced many state attorneys are willing to bend the rules because they are DUI – "Deciding Under the Influence" – of one of the most powerful lobby groups in the state: Mothers Against Drunk Driving.
The Sarasota State Attorney’s Office is planning to send out what’s called a Brady Notice to people who took the test on the faulty machines. It lets them know there may be evidence that may help prove they are innocent.
This followed a TV news story the preceding day:
Charges That FLDE Covered Up Faulty DUI Machines
Venice, FL. Oct 11 — Thousands of people in Florida convicted of DUI may not have been drunk at all. They very well may have been under the allowable blood alcohol limit. The problem may have been law enforcement not calibrating the breathalyzer called the Intoxilyzer 8000.
Now, the 10 News Investigators have uncovered documents and emails that prove the state knew there were problems and didn’t do anything to correct it for more than two and half years.
Those notes prompted an email from the head of the breath testing program, Laura Barfield, telling inspectors not to write down flow sensor problems in their field notes.
"I agree that drunk driving is wrong. We need to get drunk drivers off the road, but we should not be convicting people of drunk driving with evidence that we know is not reliable," says former prosecutor turned defense attorney Robert Harrison…
The 10 News Investigators obtained letters where a Sarasota deputy noticed there was a problem recording breath samples and breath flow levels as far back as 2007. He wrote in his notes that he even alerted an inspector who agreed there was a problem…
Robert Harrison discovered that the Intoxilyzer 8000 in Venice had a part replaced in 2008 and wasn’t calibrated and was giving police breath tests that were off the charts.
"They were reporting breath levels that were not humanly possible. The net result is the state has acknowledged that for two and half years this breath machine was giving unreliable breath tests," says Harrison.
But it wasn’t just in Sarasota where it appeared the fox was guarding the henhouse. Harrison started going through the records of the intoxilyzer and he was shocked to find the lack of candor by the state, which was aware there was a problem with the machine, for almost three years.
"As we found, almost half of every Intoxilyzer 8000 used in the state of Florida is not properly calibrated…
Proof beyond a reasonable doubt?
(Thanks to Matthew S. Kensky of Fairfax, Virginia.)
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