Category Archives: Breathalyzers
The Maui Police Department hope to be able to start enforcing their DUI laws in a more time efficient manner with the purchase and arrival of six new high-tech breathalyzers.
The current Intoxilyzer 8000 models have been used by the department since May 2015 and the introduction of the newer Intoxilyzer 9000s will hopefully allow the officers to spend less time documenting their tests results.
The new device is equipped with a touchscreen rather than a keyboard for easier data entry and its updated software will allow for some of the departmental forms to be incorporated into the device. This will allow the device to create reports rather than the officers manually typing out the reports as they did previously.
A grant totaling $63,000 through the state Department of Transportation allowed for the purchase of the new devices, and the Maui Police Department will be the first department in the state to transition to the Intoxilyzer 9000. The Honolulu Police Department also hopes to soon make the same transition.
DUI Task Force Sergeant Nick Krau has been tasked with the training as well as the writing of policy and operating procedures for the Intoxilyzer 9000 that will eventually be reviewed by the state Department of Health before being distributed. Official training and use of the new devices will take place soon thereafter.
A total of twelve officers, coming from multiple islands, spent time at a two-day training course at the Kihei Police Station in order to familiarize themselves with the new devices. The attending officers will be the ones primarily training other officers.
According to Lieutenant William Hankins, the commander of the police Traffic Section, “The technology is still the same as far as how it analyzes breath readings. It just makes it easier for the officers. Everything’s going to be faster.”
Six devices may not seem like a lot for an entire police department. however, these are not the same devices that patrol officers will have out on the street. The new Intoxilyzer 9000 devices will be analyzing results after the preliminary tests are administered and are to become the tests that are admissible in court.
Each police station in Maui County will have a new Intoxilyzer.
“We always strive to have the most updated technology possible for our officers and our community. It will allow us to get our officers back on the road faster,” said Krau.
I hope that the state departments and various police department heads do their very best to make sure that statement rings true.
A quick Google search revealed that the Intoxilyzer 9000 series has been in circulation as early as 2013. Some of the first states to implement the new model were Georgia and Colorado. Texas made a slower transition as there where a few deficiencies with the device that became apparent after other states had already begun using it but aimed for full implementation in 2015.
Although not quite as new and novel as Krau made it out to be, Hawaii’s implementation of the Intoxilyzer 9000 might signify an emerging trend of modernizing breathalyzers. Perhaps they were merely waiting for all of the deficiencies of the earlier 9000 series to work themselves out.
The topic is nothing new to this blog; breathalyzer results used to try to convict people of a DUI are thrown out because of their lack of reliability.
The latest incident comes from Massachusetts where a judge ruled that breathalyzers in over 400 DUI cases must be thrown out until the machine that police in that state use to determine a driver’s blood alcohol content can be proven as accurate.
In the consolidated case, Judge Robert Brennan found that the Office of Alcohol Testing had failed to release evidence to DUI defense attorneys that breathalyzers used in their client’s cases were inaccurate. As a result, the head of the office was fired, the results of the breathalyzers were thrown out, and prosecutors are scrambling to find additional evidence to prove the intoxication of those drivers.
According to Massachusetts law, if someone refuses a breathalyzer, their refusal cannot be revealed in a DUI trial against that person as a means to avoid prejudicing a judge or jury. When that happens, prosecutors are forced to rely on law enforcement officers’ testimony that a person was intoxicated based on their observations.
“I expect to see more of an emphasis on observations of the subject, both at the scene and at the station while being booked and in custody,” said Bellingham Police Chief Gerard Daigle. “Recognition of the signs and symptoms of impairment will be crucial. It’s similar to what is needed if the tests were refused.”
Additionally, Judge Brennan said that the Office of Alcohol Testing must undergo significant reform including providing additional training for staff and instituting internal regulations for complying with discovery requests in criminal cases, including DUI cases, similar to those that are followed by the state police’s crime management unit.
“Right now, there’s serious cause to doubt the scientific results,” said Massachusetts attorney, Daniel Cappetta. “Judge Brennan has rightly decided that these tests shouldn’t be used to take anyone’s liberty.”
The Office of Alcohol Testing is planning on applying for nation accreditation by August of this year and district attorney offices will be monitoring the office’s progress.
“We are reviewing yesterday’s ruling,” said District Attorney, Marian Ryan. “Moving forward, we will continue to be in contact with OAT regarding the date for their compliance with the judge’s order.”
This is not the first time Massachusetts has dealt with issues of faulty breathalyzers. In fact, this is not the first time Judge Brennan has overseen DUI cases dealing with the reliability of the state’s use of breathalyzers.
In September of last year, I wrote Tens of Thousands of DUI Cases Affected by Tainted Breathalyzers in Massachusetts where the same Judge Brennan, who was presiding over proceedings challenging the reliability of breathalyzers since 2015, was provided with an agreement that prosecutors were not use breathalyzer results dating back to 2011. The reason was due to the lack of proper calibration of the breathalyzers since the state purchased them in 2011.
I’ve said it before and I’ll say it again, drivers should never submit to a pre-arrest breathalyzer and they should only submit to required chemical test breathalyzer (rather than a blood test) if they’re unsure whether their blood alcohol content was above or below the legal limit. The reason for this is precisely because they are inaccurate. Whether through inherent mechanical flaws or less-than-trustworthy toxicology labs, if a driver’s blood alcohol content is slightly above the legal limit, it is easier for defense attorneys to argue that there’s a chance that the driver’s blood alcohol content is actually below the legal limit.
I know I complain a lot about the DUI laws here in California. There is much improvement to be made with regard to how law enforcement enforces drunk driving laws and how prosecutors prosecute drunk driving laws. Having said all that, at least we’re not in Canada.
Section 253 of the Criminal Code of Canada was effectively changed in December of 2018 which gave law enforcement the authority to seek breath samples from people who might have been driving under the influence of alcohol.
Here in California, an officer must have probable cause that a person was under the influence before they could arrest them on suspicion of a DUI. Only then was a person required to provide either a breath or a blood sample. Prior to that arrest, any breath sample provided was voluntary on behalf of the driver.
Under Canada’s new law, police officers no longer need to have “reasonable suspicion” that a person had consumed alcohol to force that person to take a breathalyzer. Police could demand breath samples from people at their home, in a bar, or at a restaurant. If the person refuses, they could be arrested and charged, and if convicted, can face a fine and a driving suspension.
Notwithstanding the potential to arrest a person who was not driving under the influence of alcohol, but rather lawfully drinking in their home or elsewhere, supporters of the law point to the use of another “tool” in combating drunk driving.
“Police miss a lot of impaired drivers,” said Toronto police spokesman Sgt. Brett Moore. “It’s just a really good, strong message that there’s a real high likelihood that if you get stopped by police, you’re going to get asked to submit to a breath test.”
Not surprisingly, Mothers Against Drunk Driving Canada also supports the new law asserting that mandatory alcohol screening will make the roads safer.
Don’t get me wrong, I too support making roads safer, but not at the risk of arresting, charging, and punishing people for doing something perfectly lawful. I’m not the only one.
“It’s ridiculous, it’s basically criminalizing you having a drink at your kitchen table,” Paul Doroshenko, a Vancouver criminal defense lawyer who specializes in impaired driving cases, told Global News. “If you start to drink after you get home, the police show up at your door, they can arrest you, detain you, take you back to the (police station) and you can be convicted because your blood alcohol concentration was over 80 milligrams (per 100 millilitres of blood) in the two hours after you drove.”
The Canadian Civil Liberties Association also expressed concern about Canada’s new law saying that mandatory alcohol testing will disproportionally affect racial minorities who might be unfairly targeted by law enforcement.
Notwithstanding its problems, Minister of Justice and Attorney General Jody Wilson-Raylould believes that the law with withstand judicial scrutiny when it is challenged in court and is in support of the new law.
“Impaired driving is the leading criminal cause of death and injury in Canada,” said Wilson-Raybould in December. “I believe these reforms will result in fewer road deaths and fewer Canadian families devastated by the effects of an impaired driver. This is one of the most significant changes to the laws related to impaired driving in more than 40 years and is another way that we are modernizing the criminal justice system.”
It could take years for legal challenges to make their way through Canada’s appeal courts and even the Supreme Court of Canada. Until then, people, all people in Canada, are subject to a law that could find them in legal trouble even though they’ve done nothing wrong.
It was only a couple of months ago that tens of thousands of breathalyzer results were called into question in Massachusetts, affecting countless DUI cases. It appears New Jersey is dealing with a similar issue now that the state’s highest court ruled that 20,667 breathalyzer results were faulty and therefore inadmissible in the DUI cases where the results were used to secure convictions.
The ruling stems from a case that begun more than two years ago after the attorney for a woman by the name of Eileen Cassidy was notified by the state that the breath results were possibly faulty. At the time the attorney was notified, Cassidy was two weeks into a 180-day sentence on a third-time DUI. Cassidy then filed a lawsuit which led to the appointment of a special master to determine the reliability of the breathalyzer results.
Cassidy’s lawsuit led to the charging of Sergeant Marc W. Dennis with falsely certifying that he had followed proper calibration procedures when calibrating breathalyzers used in DUI stops. The court, in its recent ruling, concluded that the results of the breathalyzers calibrated by Dennis, called Alcotests, were untrustworthy.
“Confidence in the reliability of instruments of technology used as evidence is of paramount importance,” Justice Walter Timpone wrote for the court. “Unfortunately, alleged human failings have cast doubt on the calibration process.”
In addition to determining that the results of the breathalyzers were faulty, the court also vacated Cassidy’s conviction. Unfortunately, Cassidy passed away from cancer in March, never allowing her to see her case vacated by the court.
That, however, didn’t stop her attorney, Michael R. Hobbie, from continuing to fight for her.
While the court vacated Cassidy’s conviction, the New Jersey Supreme Court failed to enunciate in its ruling who could challenge their conviction or exactly how to challenge their conviction.
“With respect to the other 20,667, their cases weren’t vacated,” said Hobbie. “They just going to get notified that the breath test in their case has been deemed inadmissible and they should seek whatever remedy is available to them.”
County prosecutors have already notified thousands of people whose cases may have been affected by the faulty breathalyzer results. The New Jersey Supreme Court, however, has now ordered state authorities to notify everyone whose faulty breath test was used in their case that the results are inadmissible.
“We’ll be issuing guidance shortly for our county prosecutors and municipal prosecutors over how to handle those cases,” said Gurbir Grewal, the New Jersey attorney general.
Although the court declaring the results of the breathalyzers inadmissible is a step in the right direction, ask yourself: How much is it going to cost those people affected by the faulty breathalyzer to legally challenge their conviction (after many, I’m sure, have already spent thousands of dollars to fight the underlying DUI charge in the first place)? As I’ve pointed out many times in previous posts and as I’m sure you’re aware, lawyers are not cheap. Should these people have to bear the burden, financial or otherwise, to remedy something that would not have occurred but for the actions of a corrupt law enforcement officer trying to secure convictions of people who may have been innocent?
Sergeant Dennis was indicted in 2016 and is currently facing criminal charges.
There are many misconceptions about what a person should and shouldn’t do during a DUI stop, not the least of which is whether a person should submit to the breathalyzer test. Unfortunately, the answer, like many things in law, is much more complicated than simply “yes” or “no.”
There are actually two breathalyzer tests that can be taken during a California DUI stop. The first is the roadside breathalyzer, often called a preliminary screening alcohol test or “PAS” test, and the second is the “chemical breath test.”
Under California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”
Like the other field sobriety tests that officers hope will give them reason to believe that the driver is intoxicated, the roadside breath test is optional. Having said that, many people don’t even know that the other field sobriety tests are optional. These tests include the horizontal gaze nystagmus test, the walk and turn test, and the one-leg stand test. All field sobriety tests, including the roadside breathalyzer, are optional. Although the officer might threaten to arrest you, stand your ground and politely refuse all field sobriety tests. They are only meant to give the officer the evidence they need to arrest you.
In fact, the officer must advise the driver that the roadside breath test is optional. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”
Whether the driver has submitted to the roadside breathalyzer or not, the officer must determine if the person is intoxicated and thus should be arrested.
If the officer has the required probable cause to make an arrest for a DUI, whether through the field sobriety tests, the PAS test, or any other information, California’s Implied Consent Law kicks in. Herein lies the difference between a roadside breath test and a chemical test.
Under California’s Implied Consent law, which is codified in California Vehicle Code section 23612(a)(1)(A), “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”
Simply put, if you have a license and you drive in California, you have impliedly consented to submit to the chemical test after you have lawfully been arrested for a DUI, which can either be a breath test or a blood test. If the driver is like me and hates giving blood, then they must provide a breath test. Conversely, if a person opts against the breath test, they must submit to the blood test.
So, to answer the question that is the title of this article, you do not have to (nor do I recommend) submitting to the pre-arrest roadside breath test. However, after someone is arrested, they must do either a breath test or a blood test.