Category Archives: Breathalyzers

Do Crime Labs Hide Breathalyzer Test Evidence?

I’ve written in the past about the inaccuracy of breath test results generally.  See, for example, Breathalyzers and Breath Test Accuracy and How Breathalyzers Work – and Why They Don’t.  And I’ve commented upon the many instances of supposedly “impartial” crime labs faulty testing procedures and lab “experts” testifying to facilitate convictions rather than justice.  See Crime Lab Breath Tests “Unreliable”, More False Blood-Alcohol Results and Crime Labs Paid for Convictions – But Not for Acquittals?

This recurring and very disturbing picture of government crime labs willing to hide or even falsify evidence to assist government prosecutors appears to be endemic.  Consider, for example, this recent news article from The Boston Globe:


Report Finds State Lab Withheld Breathalyzer Test Results

Boston, Ma.  Oct. 17 – The head of a state crime lab office was fired Monday after investigators found that staff withheld exculpatory evidence from defense lawyers in thousands of drunken-driving cases since 2011, a disclosure that could threaten many convictions.

In a report released Monday, state public safety officials concluded that the Office of Alcohol Testing routinely withheld documents from defense lawyers in a lawsuit challenging the reliability of breathalyzer test results due to an “unwritten policy not to turn these documents over to any requester.”

The documents included evidence that breath testing devices had failed to properly calibrate during the office’s certification process, the report found.

“We conclude that OAT leadership made serious errors of judgment in its responses to court-ordered discovery, errors which were enabled by a longstanding and insular institutional culture that was reflexively guarded . . . and which was inattentive to the legal obligations borne by those whose work facilitates criminal prosecutions,” the report found.


This was followed a few days later with an insightful OpEd piece appearing in The Washington Post:


Another Week, Another Crime Lab Scandal

Wash., DC.  Oct 20 — ….At some point, we need to start asking pointed questions. Among them: Why would crime-lab analysts feel pressure to fake incriminating test results and to hide exculpatory results? Are they feeling pressure from police or prosecutors? We already know that, incredibly, some crime labs only get funding when their analysts produce results that help win convictions. Is that what’s happening here? There are numerous public and private grants and awards tied to driving-under-the-influence enforcement, both for police departments as a whole and for individual officers. Was that a factor here?

Crime-lab analysts should be neutral. Their job performance should be evaluated based on their accuracy. Clearly, something is making at least some of these analysts think there’s a “right” and a “wrong” answer when conducting these tests. Perhaps it’s right there in the name: the Massachusetts State Police Crime Laboratory. A forensic analyst shouldn’t be considered on the same side or team as the police. Hosting these labs under the auspices of police or district attorney’s offices is a big part of the problem.


Yet it continues…..
 

Can Personal Breathalyzers Prevent Drunk Driving?

How many people would think twice about getting behind the wheel after having a few drinks knowing that they were above the legal limit? My guess is a lot. No longer must a person guess whether they are over or under the legal limit if they have their own personal breathalyzer.

So can a personal breathalyzer prevent a DUI? I don’t see why not.

Breathalyzers are so readily available nowadays that, in addition to the standard multiple-use breathalyzer, they have developed single-use disposable breathalyzers and breathalyzer apps for the smartphone.

As you can imagine, the range in the quality and price of personal breathalyzers is quite large. Costs will vary between $15 and several hundred dollars. Breathalyzers under $50, and those coming on key chains have questionable accuracy from the start and accuracy continues to decrease after multiple uses.

Unlike novelty breathalyzers, quality breathalyzers will be backed by the Food and Drug Administration (FDA). This means that the FDA conducts research to confirm that the breathalyzer does what its literature says it does.

Just because I believe that personal breathalyzers can prevent a DUI, it doesn’t mean that they are 100% accurate. Almost all quality breathalyzers, like those the police use, require calibration after repeated use to ensure accuracy. Some products allow for owners to calibrate themselves and some require that the breathalyzer be sent to the manufacturer for calibration. Heavily used and non-calibrated breathalyzers will likely not be accurate.

It is possible for a person’s blood alcohol content to continue to rise after a breathalyzer reading, especially if they’ve only recently stopped drinking. Therefore, it is also possible for a person to have a blood alcohol content of 0.07 when they leave the bar (and when they test themselves) and a 0.09 after they’ve been driving for a while. If that is the case, you can still be arrested and charged for a California DUI.

Lastly, a person does not necessarily need to be above a 0.08 blood alcohol content to be arrested and charged with a California DUI. A person can be arrested and charged with a California DUI if they are above a 0.08 percent blood alcohol content or if they are “under the influence.” In other words, you can be a 0.07 percent, but if an officer determines that you cannot safely operate a vehicle as a sober person could, you can still be arrested and charged with a California DUI.  A breathalyzer may determine if you are under the legal limit, but it cannot determine whether you are “under the influence.”

Although I can’t imagine some DUI’s not being prevented with personal breathalyzers, the Colorado Department of Transportation wants to be sure. They are providing personal breathalyzers to people with prior DUI’s in certain counties.

Those who participate in the program have agreed to actually use the breathalyzer and complete a survey. At the end of the program and when the survey is completed, participants can keep the breathalyzer.

You can be sure that when the Colorado Department of Transportation releases the results of this experiment, you can be sure that I’ll update you with that information.  

 

Can a DUI Attorney Challenge Breathalyzer Results?

When people think of a DUI stop, two things immediately come to mind; the field sobriety tests and the breathalyzer. I can tell you without going into much detail here that field sobriety tests are designed for failure. If you would like more details, see many of the previous articles I’ve written on the fallacies of field sobriety tests.

But what about the breathalyzer? Are they inaccurate as well and can the results of a breathalyzer be challenged?

A number of studies have shown that breathalyzers are often inaccurate. That too is a discussion for a different time. But the more important question, since breathalyzers are generally inaccurate, is whether a breathalyzer result can be challenged in court.

Unfortunately, the California Supreme Court in 2013 ruled that, although breathalyzers are generally inaccurate, scientific evidence challenging the accuracy of breathalyzers in California is not admissible as evidence in DUI trials.

The ruling stems from the 2007 DUI stop of Terry Vangelder. Vangelder was stopped for speeding in San Diego. Although having admitted to consuming some alcohol, Vangelder passed field sobriety tests. Vangelder then agreed to a preliminary screening alcohol test (an optional roadside breathalyzer) which indicated that Vangelder’s blood alcohol content was 0.086 percent. Based on that, Vangelder was arrested and transported to the police station where he submitted to a chemical breath test (a required post-arrest breathalyzer). This breath test showed a blood alcohol content of 0.08 percent. Vangelder then submitted to a blood test which indicated that his blood alcohol content of 0.087 percent.

At trial, Vangelder called Dr. Michael Hlastala, a leading authority on the inaccuracies of breathalyzers.

“They are (inaccurate),” Dr. Hlastala testified before the trial judge. “And primarily because the basic assumption that all of the manufacturers have used is that the breath that [is] measured is directly related to water in the lungs, which is directly related to what’s in the blood. And in recent years, we’ve learned that, in fact, that’s not the case.”

The judge however, did not allow the testimony and Vangelder was found guilty. Vangelder appealed and the appellate court reversed the decision in 2011. San Diego City Attorney, Jan Goldsmith, then appealed the appellate court decision arguing that such testimony would undermine California’s a per se law making it illegal to drive 0.08 percent blood alcohol content or higher.

Unfortunately, the California Supreme Court sided with Goldsmith.

“[T]he 1990 amendment of the per se offense was specifically designed to obviate the need for conversion of breath results into blood results — and it rendered irrelevant and inadmissible defense expert testimony regarding partition ratio variability among different individuals or at different times for the same individual,” Chief Justice Tani Gorre Cantil-Sakauye wrote for the court. “Whether or not that part of expired breath accurately reflects the alcohol that is present only in the alveolar region of the lungs, the statutorily proscribed amount of alcohol in expired breath corresponds to the statutorily proscribed amount of alcohol in blood, as established by the per se statute.”

The Court went on to say that, “Although Dr. Hlastala may hold scientifically based reservations concerning these legislative conclusions, we must defer to and honor the legislature’s reasonable determinations made in the course of its efforts to protect the safety and welfare of the public.”

Sounds to me like the Supreme Court is willfully ignoring science simply because the legislature was well intentioned. Sounds like flawed logic.

While people can no longer challenge the accuracy of breathalyzers in general, people who are suspected of DUI in California can still challenge the accuracy of the particular breathalyzer used in their case.

Company Behind Personal Breathalyzer Settles Dispute with FTC

I’ve never hidden my belief that if a personal breathalyzer can prevent a DUI, it should be used. That being said, it seems the company behind one of the most popular personal breathalyzers on the market has settled with the Federal Trade Commission (FTC) over false claims of its accuracy.

On the fifth season of ABC’s hit show “Shark Tank,” CEO and founder of Breathometer Inc., Charles Michael Yim, won over the “shark” investors with an invention called the “Breathometer” that allowed users to a detect their own blood alcohol content through their smart phone. The device attached to smartphone, would be blown into by the user, and the smartphone would calculate the BAC through an app. Yim’s pitch included the prospect that the Breathometer could prevent incidences of driving under the influence of alcohol.  The investors were so impressed with Yim’s invention that they offered up a $1 million dollar investment in exchange for a 30% stake in his startup.

The Breathometer became a consumer hit partly due to advertisements which claimed that the devices accuracy was backed up by government-lab grade testing. According to the FTC, sales for the Breathometer totaled $5.1 million.

However, more than three years after the episode aired, the FTC announced that Yim and Breathometer Inc. had settled a claim that the device “lacked scientific evidence to back up their advertising claims.” The complaint also alleged that the company knew that one variation of the Breathometer, the Breeze, “regularly understated” blood alcohol content levels.

While Yim and Breathometer Inc. did, in fact, settle with the FTC, they did not admit or deny the FTC’s allegations.

Under the settlement with the FTC, Yim and Breathometer Inc. are barred from making claims of the device’s accuracy unless the claims are supported through “rigorous testing.” The company also agreed to notify purchasers of the product to offer full refunds.

“People relied on the defendant’s products to decide whether it was safe to get behind the wheel,” Jessica Rich, director of the FTC’s Bureau of Consumer Protection, said in a statement. “Overstating the accuracy of the devices was deceptive — and dangerous.”

Breathometer recognized the settlement on its website by stating, “We feel it is important to clarify that this settlement does not undermine our achievements in creating quality consumer health devices.”

Kevin O’Leary, one of the Shark Tank investors, responded to the settlement by stating that the company proactively stopped the manufacturing of the Breathometer in 2015 before the FTC’s initial inquiry.

I stand by my assertion that a personal breathalyzer is a good way to prevent a DUI. Just do some research beforehand on the reliability of what you purchase. According to digitaltrends.com, the best personal breathalyzer for 2016 was the BACtrack S80 Professional Breathalyzer which will run you $125. According to the website, the best smartphone breathalyzer was the BACtrack Mobile Smartphone Breathalyzer at $98, the best portable breathalyzer was the BACtrack Keychain Breathalyzer Portable starting at $26, and the best budget breathalyzer was the VastarAB120 Professional at $20.

Better to spend $125 (at most) to prevent a DUI than to spend the thousands of dollars it will cost you if you are arrested on suspicion of a DUI.

“Pot Breathalyzers” on the Horizon…

 As I’ve mentioned in past posts, there are a number of problems with trying to determine whether a driver is under the influence of marijuana.  See, for example, Marijuana-Impaired Driving: A Prosecutor’s Nightmare?, New Study: Minimal Driving Impairment From MarijuanaCalifornia Proposes New Law to Allow Roadside Marijuana Tests, Is a Marijuana Breathalyzer in the Offing?    Primary among these problems are:


1.  Marijuana cannot be detected or measured on a breath machine.  It can be measured with blood tests, but there is almost always a delay — often hours — in obtaining a blood sample.  Result:  due to continuing metabolism of marijuana in the body, the level at the time of testing may be significantly higher or lower than at the time of driving

2.  Unlike alcohol which dissipates after several hours, THC (the active ingredient in marijuana) can stay in a person’s system for days or even weeks after smoking or eating.  Even though they are no longer affecting the driver, they will be still detected and reported as marijuana in the blood.

3.  There are no recognized scientific studies establishing at what level of THC in the blood a person’s driving ability is impaired.


A solution to one of these problems would be the development of a breath machine which could accurately measure marijuana on the breath — particularly if this could be done quickly at the scene of the arrest.  But no such device exists….yet:


Marijuana Breathalyzers to Test California Pot Users for Pot Use

Los Angeles, CA.  Sept. 14 – An Oakland-based company has developed a marijuana breathalyzer for distribution across police stations in the U.S. to begin a nationwide test to see if they can monitor people operating motor vehicles while under the influence of pot, and drivers in California were among the first to be tested…

The marijuana breathalyzer – which had some help in development by the University of California’s chemistry department – is able to detect THC on people’s breath after they’ve consumed edible pot products as well as alcohol.

Hound Labs plans to roll their product out nationwide upon further testing to validate the technology’s results.

Until it’s perfected, police will have to continue relying on testing saliva, urine, and blood to measure marijuana in the system, which can show the presence of drugs days after the user is actually under the influence.

Some police have already shown their support for the breathalyzer, including Lompoc Police Chief Patrick Walsh, who says he plans on issuing the device to at least six of his departments over the next six months…


Ok, so maybe they will be able to detect and even measure the amount of THC in the blood from testing the breath.  But how does this solve the problem of inactive THC still remaining in the blood from smoking days or weeks earlier?  And what good is it to know the amount of THC in the breath if there is still no scientific evidence of the amount necessary to impair driving ability?