We’ve been saying it for years: breathalyzers are inaccurate for a multitude of reasons. Recall just a few months ago The New York Times confirmed exactly this stating that after interviewing “more than 100 attorneys, scientists, executives and police officers and [reviewing] ten of thousands of pages of court records, corporate filings, confidential emails and contracts,” it revealed “the depth of a nationwide [breathalyzer] problem that has attracted only sporadic attention.”
In January of last year, a Massachusetts judge threw out the breathalyzer results of over 400 DUI cases as the result of inaccurate results.
In late 2018, New Jersey’s highest court ruled that 20,667 breathalyzer results were faulty and therefore inadmissible in the DUI cases where the defendant’s blood alcohol content was used to secure the defendant’s conviction.
As if breathalyzer accuracy wasn’t unreliable enough already, now state police in Michigan are looking into the alleged fraudulent certification of breathalyzers used throughout that state.
Accuracy of breathalyzers thrown into question amid Michigan State Police investigation
January 14, 2020. Detroit Metro Times – Michigan State Police are investigating three contract employees who ensure the accuracy of breathalyzers used during traffic stops after authorities discovered “performance-related issues” and possible fraud.
State police notified law enforcement officers across the state to stop using more than 200 breathalyzers from longtime vendor Intoximeters.
The investigation focuses on three Intoximeters contract employees, who were responsible for certifying and calibrating Datamaster DMT breathalyzers to ensure they are accurate.
Investigators said they suspect fraud after finding discrepancies in paperwork.
Stopping the use of the breathalyzers “is an absolutely necessary move to safeguard the integrity of the criminal justice process,” Michigan State Police Director Col. Joseph Gasper said in a news release.
“Upon learning of additional and more egregious discrepancies, I am no longer comfortable having police agencies using these instruments until we can be confident they are certified, calibrated and serviced according to state law and industry standard,” Gasper says.
In a letter to law enforcement officers across the state, state police said prosecutors have been alerted to the suspected fraudulent activity.
“Prosecutors with cases impacted by the contractor errors identified by the MSP have already been notified,” Michigan State Police Maj. Greg Zarotney wrote to law enforcement officials. “However, out of an abundance of caution, we are examining all available data to determine if any additional tests are impacted by the contractor errors.”
The following law enforcement agencies were using breathalyzers with “possible discrepancies”: Alpena County Sheriff’s Department, Beverly Hills Police Department, Detroit Detention Center, Montcalm County Sheriff’s Department, Niles Police Department, Pittsfield Township Police Department, Tecumseh Police Department, and Van Buren County Sheriff’s Department.
In California courts, a person cannot challenge the accuracy of breathalyzers in general. If, however, an individual breathalyzer was inaccurate during a DUI stop, that person may challenge the accuracy of the individual breathalyzer used on them during the stop.
Why risk the uncertainty of a breathalyzer result when so much is on the line?
If an officer requests that a driver submit to a pre-arrest breathalyzer, that breathalyzer is optional. Although the officer may make it seem as though it is mandatory, the law does not require that the driver submit to a pre-arrest breathalyzer.
What is required, however, is that a driver submit to a chemical test, which can either be breath test or a blood test, but only after that driver is lawfully arrested on suspicion of a DUI. Until then, don’t do it.