Most DUI cases involve the following scenario: The police suspect that a person may be driving while intoxicated based on the driver’s road performance. Drivers get pulled over. The police will then request that the driver undergo several field sobriety tests such as a walk-and-turn test and a standing on one leg test. If the driver fails the field sobriety tests, he/she will be asked to submit to a breath test.

The breath test is conducted by using machines that the police officers have with them in their vehicle. Alternatively, the driver is taken to the local police station where the breath test is performed. If the result of the breath test shows a blood alcohol content (BAC) of .08 or more, the driver will be charged with driving under the influence of alcohol. In Maryland, and all states, a .08 reading is grounds for a DUI conviction.

An investigative study reported by the New York Times now places breath tests, “the linchpin of the criminal justice system,” in doubt. The report states that a million Americans are arrested each year for drunk driving.

The study found the breath test devices,

“in virtually every police station in America, generate skewed results with alarming frequency, even though they are marketed as precise to the third decimal place. The Times interviewed more than 100 lawyers, scientists, executives and police officers and reviewed tens of thousands of pages of court records, corporate filings, confidential emails and contracts. Together, they reveal the depth of a nationwide problem that has attracted only sporadic attention.”

And if I may, I’d like to add just a bit of testimony to this point.

Ah, ha ha ha! WE CALLED IT!

Key findings in the NY Times investigation

Already, judges in Massachusetts and New Jersey, in just the last year, have dismissed more than 30,000 breath tests due to human errors and improper governmental oversight of the breath test devices.

  • In many cases the machines haven’t been properly calibrated – sometimes yielding results that are 40 times more than they should be.
  • Many police departments have “shoddy standards and lack expertise.”
  • In some cities, lab officials have used stale or home-brewed chemical solutions that warped results. In Massachusetts, officers used a machine with rats nesting inside.
  • Many machines have been found, after technical review, to have software errors
  • Some states “have picked devices that their own experts didn’t trust and have disabled safeguards meant to ensure the tests’ accuracy.”

In the Pennsylvania case of Commonwealth vs. Schildt, the judge “called it “extremely questionable” whether any of his state’s breath tests could withstand serious scrutiny. In response, local prosecutors stopped using them.” The defendant, with the help of legal counsel, successfully challenged the “the per se [automatic] evidentiary presumption of reliability and accuracy for breath testing device (intoxilyzer) readings beyond a limited range. In essence the judge ruled that all BAC results of .15 or more and .05 or less were not valid. The judge’s reasoning was based, in part, on the finding that the manufacturer of the intoxilyzer hadn’t obtained “independent laboratory certification of the simulator solution used in calibrating the device.”

Even industry veterans have raised questions about how the devices were meant to be used in DUI cases. The non-reliability of the breath test devices raises several key defense issues:

  • If the testing devices are not reliable, then the results of the test should not be used in court. In most cases, this means the DUI charges should be dismissed.
  • Many drivers lose their license because they refuse to submit to a breath test. The question begs – if the tests themselves are not reliable, is it fair to punish a driver for refusing to take the test?
  • Should drivers who were convicted of a DUI have the right to appeal their conviction if the machine used to test them is deemed invalid?

At Drew Cochran, Attorney at Law, our Annapolis, Centreville, and Ellicott City DUI lawyers have extensive experience fighting DUI charges. A major part of every DUI case is challenging the admissibility of any breath tests or field sobriety tests. We challenge the basis for giving the tests, the manner in which the tests were given, and (when appropriate) the scientific validity of the tests. For help with a first or repeat DUI charge, call us at 410-271-1892, or complete our contact form – to schedule an appointment.

And remember: Keep Calm – and Call Drew.