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It's What DUI Attorneys Have Always Known: Breathalyzers Are Unreliable

Nov. 12, 2019

So now you don't have to take our word for it, but you can take it from the New York Times as well: breath tests don't work; breathalyzers produce bad results; breathalyzers are, in essence, a scam that can cause innocent people to suffer the consequences of a DUI conviction.

On November 3, 2019, Stacy Cowley and Jessica Silver-Greenberg's investigative report – These Machines Can Put You in Jail. Don't Trust Them – on breath machines was published. Though the entire article is worth a good read, here is a summary of some of their alarming and stunning findings.

Finding No. 1: Breath Machines Are Far from Accurate

The investigative journalists focused their piece on a few states because to do so across the United States would be a massive undertaking. Their report, however, is still extensive and involved

interview[ing] more than 100 lawyers, scientists, executives and police officers and review[ing] tens of thousands of pages of court records...

From one story to another story, it became clear that breath machines often produce inaccurate results. Breath alcohol content (BrAC) is sometimes reported 20 to 40 percent higher than what the actual BrAC was. The inaccuracies are produced via a combination of:

  • faulty software;

  • defective design; and

  • human error.

The bulk of the report focuses on Massachusetts and New Jersey where thousands of DUI cases have been thrown out because of bad breath machines.

Finding No. 2: Scientists Have Known About the Faults but Have Been Shushed by The Makers

To compound the problem with faulty machines and human error is the silencing of scientists and lab technicians who analyzed and determined these machines to be faulty. Company after company has pressured scientists and lab technicians either to keep it quiet or to dispose of the data. These companies, as discussed in the article, include (but are not necessarily limited to):

The report outlines various examples involving the above companies and how information on defective software and faulty machines was kept from the public. Though there are many examples, here's what happened when two analysts found serious defects with Dräger's Alcotest code and drafted a report titled "Defective Design = Reasonable Doubt."

Dräger sent Mr. Walker a letter demanding that he and Mr. Momot ask anyone with a copy of their report to destroy it — including the lawyers who hired them — and to stay silent about the instruments' inner workings. Facing a giant company, Mr. Walker felt he had no choice but to comply. “I am an ant,” he said.

Finding No. 3: Courts Have Interfered with Justice in DUI Cases, Too

To compound the problem even further, courts across the country have made it difficult if next to impossible for DUI defense attorneys to get their hands on a breath machine to analyze the code, among other things.

Then, even when the Supreme Court in New Jersey allowed a defense attorney access to a breath machine for forensic analysis. It was found to be

littered with “thousands of programming errors.”

Even with this finding, the court went on the say the specific breath machine (Alcotest 7110) was "generally scientifically reliable." As a result, the manufacturer – Dräger – allegedly markets the device as

reviewed by independent third parties and approved by a Supreme Court decision.

So, even when a court finds the breath test as inherently flawed, it still gives it the green light to be used. And people – like you and me – suffer because of it.

Finding No. 4: You Have to Submit a Breath Sample or Suffer Immediate Consequences

Regardless of these findings and what DUI defense attorneys have been saying all along, you still have to submit a breath sample when the police ask you to do so. A refusal means you will suffer an automatic driver's license suspension – and this is true whether or not you are eventually convicted.

Finding N. 5: You Can Fight a Dui Charge in Virginia and Elsewhere

You are innocent until proven guilty beyond a reasonable doubt. And though the manufacturers of breath tests don't want you to know it, there is reasonable doubt when it comes to DUI arrests based on the results of a breath machine.

If you have been arrested for a DUI in Virginia, contact an aggressive, smart DUI defense attorney and get the DUI defense you deserve.