Humans are unsafe drivers even sober. Even a moment's inattention can be deadly. dozens of medications, fatigue, or inattention make things worse. The only solution is self-driving cars.
2
Should a test which has such a high rate of false positives be used.
1
Drunk drivers destroy entire families - maim communities and inflict pain with scant justice...I hope that every arrested drunk driver doesn't have their lawyers citing your reportage. I hate to see innocent people be dragged through the system but I personally don't think drunk drivers get enough time and I'm a progressive. Thank goodness I don't drink because I do drive.
I hope you are pulled over and convicted of a drunk driving due to a faulty machine. then I want to hear how you feel about this situation. If evidence can't be trusted it can't be used in court. that's pretty basic. due process is a constitutional right not some annoyance. law enforcement is not meant to be easy and when they mess up society has to face the consequences of police and procedures not doing their due diligence. maybe if 10000 unsafe drivers get back on the road they will actually take proper testing seriously for when the guilty ones inevitably do it again.
5
How about just setting the highest acceptable BAC at 0.00%?
The jurisprudential problem of inaccuracy would greatly diminish, if we could go from making the element of the crime of drunk driving a qualitative one, instead of a quantitative one.
Do we really need Bangladesh, Estonia, Fiji and Saudi Arabia, among others, to set such a wise example for us?
Back in the late 70s & early 80s in Yolo CA police, I mean patrol officers, would disinfect the breathyliser, germs you know, between uses. With rubbing alcohol. A residue of the "cleaning material" adhered to the tubes side, add hot breath, eh, voila!
The practice was discontinued (officially, buy who knows what unofficial tricks continue?)
The law cites blood levels, only accept blood test. And demand a split for the defense.
If that not provided, well...let the lawyer go after things. Like exclusion...
I know it varies state by state, but the penalties for refusing a test are often far less than being branded with a DUI. Somewhere I've lived in the past the penalty was losing your license for a year. Many jurisdictions will allow a to and from work exemption, even.
And what about not blowing, but agreeing to a BLOOD alcohol test? Since that has to be done by a nurse, often by the time they find someone to do it, the BAC has declined. So I've heard.
DISCLAIMER: I am neither a doctor or a lawyer nor have I ever played one TV.
4
a phlebotomist can draw the blood needed for the test. they can train up an officer or two a shift in phlebotomy probably cheaper than the ineffective sensitivity training they do.
Excellent article. The NY Times is great on stories like this. I know from a law firm where I worked that these defective machines have put a lot of innocent people in jail. The police usually lie on drunk driving arrest reports. They always say the person didn't walk a straight line, even in times when they did. The police write the report after they see the results of the machine. Kudos to the Times for their in depth work on this.
8
I worked in an organic chemistry lab. All types of analysis machines are fussy and tricky to obtain consistent results from. We were constantly having to recalibrate and tweak the settings, often on a daily basis. There is no such thing as a chemical analyzer that you can simply set up once and then have it work reliably for months at a time. The manufactures are selling labs and police departments a grossly over-simplified expectation, and the labs and departments are being willfully ignorant, all for the sake of maintaining the myth of the "infallible" machine.
6
Thank you for this article, and shedding a light on this problem. I am a physician, and work in drug safety. I feel that there is a lack of understanding in the general public on testing and diagnostics, and it seems the general public views scientists as being similar to the Professor on Gilligan's Island - someone who knows the solution without needing testing or review. In reality, science is much more complex.
It is usually the case that 2 different types of tests are required for a correct diagnosis: a screening test; and a diagnostic test. A screening is cheap and easy to use, but it also has a high level of false positives. It is used as a way to save time and money so as to whittle down the number of patients who need a (more expensive and time consuming) diagnostic test. A screening exam should never be used to give a final diagnosis, but those outside of science/medicine too often misinterpreted the results as being just that.
Not only do these machines need stricter protocol in order to calibrate them correctly, but they should be considered a screening tool and never be used for diagnosis (or proof of conviction). A blood test is always required.
7
Why are airline pilots required to abstain from drinking alcohol beverages 8 hrs before a flight and the FAA mandates: a pilot cannot have a blood or breath alcohol concentration of 0.04 or more, which is half the legal limit for driving in the United States’? Commercial aircraft can hold several hundred passengers on each flight. How many car passengers does someone drive by with a concentration of .04 or more..day or night?
Why are you glad that airline pilots have twice as stringent requirement than people driving cars at any legal speed and every imaginable condition. Commercial aircraft have extensive electronics and ground support to get you there safely(with new electronics that allow planes to completely land themselves), while your fellow drivers have no real improvements preventing your fellow motorist from running into you. Ie you aren’t warned if the person driving at you or aside of you, can prevent your demise.
Maybe we all need a chip embedded in us that monitors our blood concentration and stops us from doing anything dangerous, if over the legal limit. I would vote for .04 for starters, but with that embedded chip monitoring me vs a breath test.
It would be great if we could see tests of the various machines (including machines pulled from the field) against each other and against blood tests (using multiple labs, as even labs get it wrong).
I was very impressed with your article regarding the Breathalizer test. My question is once you get your license back after several years you are forced to put one of those machines in your car with a charge for installing it & a monthly fee for many years which I understand. My problem is the machines are very old, dirty & are not functioning properly & when they break down you have to take them back to the garage & pay another fee, the whole thing is definitely a racket for the DMV, sorry to say. The other issue is it goes off while you are driving & you have to blow into it, what if you can’t pull over definitely could cause an accident. The whole thing is terrible for individuals who have obeyed the system & are trying to get there lives together, it’s disgusting. I think this also needs an investigation, it’s suppose to be a happy time for these individuals but instead it’s very stressful. Thank you
6
The best mean of protection would be to insist on having blood drawn for testing by a Medicare accepted lab!
1
There are many flaws in what has passed as forensic “science.”
1
I was in a jury pool for a woman who was accused of DWI. The prosecutor pasted a smile on his face and said "Now, you folks do understand that when a person doesn't register a breath test beyond the legal limit - 0.08%- that doesn't mean that person is not intoxicated. You do know that you can be drunk and register far below 0.08%, right? Does anybody disagree?". I raised my hand and asked the guy why prosecutors insist the breath test is infallible proof of drunk driving, but only when the test results are in their favor. That question caused them to disqualify me from the jury. Afterward, I came to the conclusion that law enforcement doesn't trust the breath test either, at least when the results don't go their way. Naturally, they will never, ever admit that.
11
An FYI. A friendly cop let me know that he has no legal means to force you or any motorist to take a Breathalyzer test if you refuse. So refuse.
5
10,000+ killed each year by drunk drivers. Guess my sympathies with them and not with those who drink any amount and get behind the wheel.
Maybe we need police to stop and arrest those who are driving erratically than trying to criminalize states of being?
Being tired isn't a crime. Driving while tired is impossible to detect, other than they drive erratically.
3
@David Your's is an interesting insight!
High-resolution cameras are cheap and effective. So if there's footage of a driver - who crosses the double-yellow line, crosses the fog line, swerves, weaves, etc. - that will establish the dangerousness of their driving.
The possible reasons - fatigue, intoxication, insect bites, phone abuse, pet's antics, child's crying, spilled drink, medical problem (seizure, allergy, etc.), etc. - doesn't matter a whole lot.
A Court may choose to exonerate someone, panicked by a hornet, who swerves, while trying to shoo the bug out of the car.
This approach puts unsafe driving on the same footing with auto theft. Guilt or innocence hinges not on why someone stole a car (or how many beers they had) but rather on whether or not they had lawful ownership.
Someone, who drives properly - but with a blood alcohol content of 0.15 - seems to present no danger. Someone with a blood alcohol content of 0.06 - who drives on the wrong side of a road - - is an clear-and-present danger.
If a police officer's video shows unsafe driving, that should be put before the Court. If a judge wants to exonerate someone, so be it.
2
Few U.S. laws expose public officials to criminal penalties and fines, for abuse of office, gross negligence, lying to courts, malicious prosecutions, etc.
While there may have been a time when public officials - elected and appointed - tried hard to do according to the law, that time seems to have passed.
Sadly, though, few laws provide for penalties for public officials, whose unlawful or grossly negligent actions inflict death or financial/reputational destruction.
It is only recently - thanks to the ubiquity of top-notch cameras - that police officers are prosecuted, who plainly and unnecessarily used lethal force.
One way to right the balance is for laws to provide that an accused has his/her defense costs met from tax-payer funds, at their chosen attorney's usual hourly rate, with the bills paid within 30 days of submission (rather than at the end of the process). Public defenders' case loads keep most of them from doing a good job.
Defense against a "simple" charge can cost tens of thousands of dollars: hiring an expert can cost several thousand dollars.
Further, laws need to provide a right of private action, to allow prosecution of officials who lie to Courts. An aggrieved party can hire an attorney, empowered to bring a criminal charge against a public official, if a prosecutor declines to do so. Here, too, the costs will be met with taxpayer funds, at that attorney's usual hourly rate.
Such changes will help to "level the playing field".
2
I am no supporter of drinking and driving. But if you are going to punish people for drunk driving the tests that confirm that fact need to be accurate. Why can't police departments do their homework and purchase machines that give true results? Is it impossible to make such machines?
I support getting all drunk drivers off the roads but I don't support punishing people due to false evidence. From what I have read here it appears that this is a widespread national problem that needs to be addressed. I hope the Times continues to follow this story and report to the public what remedies might be appropriate.
4
a proper lab spends alot of time calibrating and testing their mashines. that costs lots of money and man hours.
so yes it is impossible to build a always reliable mashines for continual service with out proper maintenance and calibration.
The companies that make the machines know that police and prosecutors don't want to hear a pitch where they say this machine is reliable only if it is continuously calibrated so they don't they market it as if it's going to be perfect all the time. because if they don't market it that way they're competitor will and they won't get business.
A few years ago I was stopped for alleged weaving (lane deviation indicators never went off) in a construction zone with cones (didn't knock any over). I had two drinks over a 4-hour period along with fried snacks for which I took ranitidine. Trooper did not administer ANY roadside tests as there was glass on the roadside, and I was wearing high sandals. Could not understand why I blew over .08 on the stop, but I went without protest to Ramsey County Adult Detention. Before booking they used what looked to be an antiquated machine, I blew 3 times; two were "under" and one was "over." Uh huh. When I got into booking, as I listed my medications in response to the question, a rude, tooth-missing jailor said, "Why, you sure are a sickie aren't you?" and cut me off.
Since I'd never been arrested, it took 8 hours to run my prints. Turns out ranitidine, in the news for having a carcinogenic ingredient, raises blood alcohol up to 38%, and the only country requiring a warning label is Denmark.
https://www.researchgate.net/publication/12675066_Alcohol_levels_are_increased_in_social_drinkers_receiving_ranitidine
While the charge was dropped to careless driving, it cost $900 for reinstatement of license after 10 day's automatic revocation; $300 for final careless driving charge; $250 for an alcohol assessment; $50 for a MADD class and $2500 for an attorney. Not to mention a hike in car insurance.
9
Here's an idea: don't drink and drive. Just don't.
2
and what do you tell the people who weren't drinking and still get a bad test result? your simple solution to this complex problem is not apriciated.
3
You know what else is unreliable?
Arson science (https://nyti.ms/2rbYBhb), hair analysis (https://bit.ly/2rbYK4d), blood spatter analysis (https://bit.ly/2PKesxJ), and fingerprints (https://bit.ly/2WIO0Wt). Fingerprints are unreliable. Even fingerprints.
What can actually be trusted as criminal evidence? I'd far prefer to trust scientific evidence over notoriously unreliable witness statements (https://bit.ly/2pEqqyc). But what if the science can't be trusted either?
2
So, should/can a person refuse the test??
@Anne B depends on the laws. In Texas you can refuse and it's an automatic suspension of your drivers license. On "heavy enforcement" operations the police will have a judge on call to issue warrants to draw blood of people that refuse to blow.
1
Great article, however, I would have liked at least a paragraph of what happens to you if you refuse the test.
3
I was pulled over by a trooper, never given a reason why, arrested, was not allowed a telephone call - I was told if I didn't blow as long and hard as I possibly could, we would be there all night. I have suffered from anxiety disorder since age 12. Anxiety causes shallow breathing. When I did blow 'as hard as I possibly could' it felt like I was blowing air that I'd suppressed for an hour. I had no dinner and had been sucking on throat drops all day. A few days after my arrest I was diagnosed with prediabetes. Holding my breath during anxiety episode could affect a breathalyzer, the sugary throat drops could affect a breathalyzer, my height and low weight 109 lbs. could affect a breathalyzer and my age - late 50's could affect a breathalyzer. I adhered to DMV rules of waiting hours after a glass of wine before driving. I found a room full of late 50's, thin adults in my mandatory Sheriff's office class, where it was explained to us that the County makes millions off of us. I have never even had a parking ticket in 40 years of driving. I couldn't afford to go to trial, so I lost my savings, my license, my dignity. Local attorneys are on the bandwagon with the Town Judges as everyone gets their piece of the pie in revenue. We are targeted and we are easy prey for a fallible system. It's all about money.
8
The deeper story is the economic impact of DUI enforcement. More than 200 Billion dollars per year is extracted from the driving public through legislation which escalated from the time the Federal 55 mile-per-hour speed limit was abolished coincident to the Clinton era COPS bill which fulfilled a political campaign promise to field 100,000 additional law-enforcement personnel.
4
As noted in the article, the most accurate way of testing for BAC is to take blood. In this regard we have handcuffed ourselves unnecessarily. First, driving is a privilege, and at least in NY when we drive we consent to the testing of our blood. Frequently we hear how people "refuse" to take the BAC test, but this is a misnomer, what they are really doing is revoking their consent. This is a self imposed restriction, there is no legal requirement to allow a driver to revoke her consent. If we removed this ability, we could require driver's to submit to a blood test so long as law enforcement had reasonable cause to believe that the driver had consumed alcohol and impaired her driving. Second, at least in NY, we have restricted when blood can be drawn to those circumstances where the driver is alleged to have injured a person or when they are incapable of withdrawing their consent. Again, their is no need for this, the driver has consented to a blood test. Thus, when the police have reasonable cause to suspect impaired or intoxicated driving, have them take the driver to a lic. phlebotomist and take the driver's blood and then submit that sample to a certified third party lab for testing and voila no need for breath test analysis.
2
It is way easier for you to get convicted by a police officer who is basing his arrest solely on sobriety test rather than with the aid of breathalyzer. The breathalyzer often exonerates those who would be wrongfully arrested. The only thing that the Times has found is that when Judges view they a particular breathalyzer is not reliable they throw out the results as evidence. That is exactly what we want.
2
Black boxes - like the curtain in the Wizard of Oz - are there for a reason - to hide the facts. I never trust anything inside a black box or anyone who claims it is too complicated for me to understand - highly unlikely, and more of a tell that I'm being scammed.
The drunk-o-meter is really just another revenue generating scheme for the state, device makers and insurance companies with some safety pretexts thrown in for good measure. Indeed, the story could easily be repeated verbatim - almost - by merely replacing the device to a speed-o-meter (speed-gun, radar).
No doubt drug tests, and other "tests" that decide one's fate - liberty, livlihood, etc. - are needed to protect society, but the consequences of getting it wrong are too high to merely sweep under the rug. All players would benefit from shinning a light - indeed, independent scientific review could help device makers improve their products. The fact it is maliciously hidden, for obvious financial reasons, is unconscionable.
It's not the machine. It's the user, programmer and profiteers behind the power of the machine that is the problem as they round up the penalties on their innocent victims.
Any machine that 'accuses' someone should itself be independently tested too, and fined if incorrect and awarded to the innocent party. Would device makers accept a black-box test of their black-box drunk-o-meter? Failure of their device by more than 0.08 times should be banished from the market.
1
It seems to me that there was a lot of willful disregard for both science and the defendants rights. Not only should cases be thrown out, but the states and manufacturers of these devices should be held accountable with damages paid to those wrongly convicted and maybe even criminal charges.
2
@Ed Zachary Did you read the article; it says that in many cases the results are thrown out. Sounds to me like you don't understand science.
The breathalyzer may be delicate, but the really complicated tests are the ones used to support the claim that 0.08 BAC is impairment, since the impact of that level of BAC on actual driving is invisible to the naked eye.
But without that low threshold, it would hardly be worth the police effort to randomly test drivers.
2
This is proof positive that the criminal justice system in the US is largely profit driven. If police activity is self sustaining, it shouldn’t exist.
5
In the cyber-war, instrumentation of all types is considered to be a key target. We usually think of MALWARE in terms of shutting off the power grid. But it can also be used to confuse the public, convict the innocent, and in key areas like medical instruments, murder someone at the push of a button. In the cyber-war, MALWARE is often described as a programming 'bug' because, when found, they often look like a mistake. According to this article: "Technical experts have found serious programming mistakes in the machines’ software."
It is one reason why RFID theft scanners at a store can't be used to convict, and polygraph tests are inadmissible in Law cases. All can be remotely 'tweaked' to create phenomenon. Volkswagen did the same thing with their engine software during pollution control tests. In their case, they used MALWARE to make their engines look cleaner than they actually were.
I first became interested in MALWARE in semiconductor chips when designing integrated circuits for metallurgy test equipment, much of it shipped abroad. But when I began implementing safeguards to prevent tampering with the instrument, I soon found myself out of a job and under the microscope of the U.S. defense establishment (kind of like Ed Snowden, except I never accepted a security clearance). By extrapolation, I assume that metallurgy test equipment is a key target of the U.S. defense establishment overseas: for eavesdropping or for manipulating results.
Another failure of substituting automation and “
the “wisdom” of machines for all the various ways one can test if someone is safe to be driving. Faulty machinery aside, alcohol effects everyone differently by weight other variables that once again we have to wonder if the good old way of doing things was actually the “smart” one.
If I remember right, officers perform a field sobriety test on a suspect before they get the breath test. If the suspect fails that first test, they can be arrested without a breath test.
all cars should be equipped w an accurate breathalyzer ..which cannot be disabled..police seem to live going thru all the side of the road humilation...to find tbey are not accurate causes me some bitter laughter....no good solution to this...many people do not know that alcohol intake from the previous night resuges in the a.m. so its possible to be drunk in the a.m from previous night...how many on their way to work or w kids drunk a g a i n? best solution? buy a decent breathalyzer online and u s e it. o r? join aa and stop tempting fate. my observation? only problem drinkers/ alkies even approach the level if drunk driving.others know when to stop....they start to " feel" it...and put down the glass.try that idea w a drunk! good luck!
These roadside tests are never specific. To legitimately test for ethyl alcohol in blood, urine or breath you need a dual column gas chromatograph (GC) or a GC linked to a mass spectrometer. Nothing else is specific enough or quantitative enough. Screening tests - like the breathalyzer and all its descendants - are designed to give false positives at the expense of false negatives: with the initial quick and dirty screening test we'd rather remove a few non-impaired drivers than miss a few drunks. The same is true for all screening tests whether it's for alcohol or prostate cancer. Use the screening test to sort out the 'maybes' from the 'nots' and then the more expensive and more accurate and more specific test to sort the 'maybes' into 'yes' and 'no.'
It's not complicated but it does require someone who knows what s/he is doing. Calibration of the equipment and interpretation of the data is not for amateurs, interns and police officers.
5
@Andrew You are absolutely correct.
1
How about this. Don't drink and drive.
The problem with breath test machines goes away.
3
While difficult to defend anyone who drinks and drives, the article does drive home an important point:
There is no penalty for a false prosecution. A system needs to be put in place where everyone from the arresting officer to the Judge suffers for their mistakes.
Today, governments simply move along making mistakes and charging the tax paying pubic for their errors.
Leveling the playing field between accused and accuser will eliminate these problems faster and easier than any other solution.
5
All of the machines or devices that are used to test for blood alcohol or for speeding are totally dependent on poor testing devices. All these devices are dependent on temperature, humidity, and other uncontrollable situations. Radar guns are tested with a tuning fork and the frequency of that fork can change with temperature.
All that needs to had to beat a ticket is a folder full of questions like 1) when was this thing tested before I was caught and you show me the paper work? 2) what was the temperature in the place when you tested this device. stuff like that. Since the temperature of the bread blow into a breathalyzer can affect the results, ask questions pertaining to things like that. The police do not know how to respond and if you ask for a jury trial, your lawyer can baffle a jury in a minute.
But her in Georgia, I have to wonder why they even put up speed limit signs. On I-20, I-75, and I-85, going into or out of Atlanta, there is a speed limit of 70. But if you are only doing 70, you are going to get shoved off the road and I see nothing that indicates that they even check for drunk driving, but I see a lot of drunks driving.
@Bill Dooley The problem with discussing this issue in the comments section is that all comments, no matter how unfounded, get equal weight. This comment says that all breathalyzers are dependent on temperature, humidity and other uncontrolled situations. The lgical conclusion is to completely eliminate such tests. If society feels that it is important to control DUI drivers killing others, we should have a scientifically informed discussion in which wee look at the impact of calibration of existing devices on findings, the extent of alteration by temperature and humidity, tricks to fool it that have been outlined here. Perhaps it would be worthwhile to have writers who know something about the subject matter.
When I lived in NYC I took the subway home after a night at the Village Vanguard or Birdland where I had a few drinks while listening to jazz.
When I moved to Florida, a state with a wretched public transportation system, I gave up having a few drinks at happy hours or when dining out. The police here are not too nice with a tipsy people.
3
@Tonjo the reason the police are "not too nice" is that they have seen the carnage that DWI's have inflicted on innocent lives.
Agree with all the comments relating to the outrage toward the unfairness of how this problem of drunken driving is being handled by some in law enforcement and the companies who are foisting fake technology on the public.
However, the best solution here is not to consume alcohol if you are intending to drive. Sad but true because if you do, the deck is stacked against you. Most of the police officers I have encountered over the years have been fair and reasonable professionals but there have been a few who were not suited to the career.
2
"The machines are sensitive scientific instruments, and in many cases they haven’t been properly calibrated, yielding results that were at times 40 percent too high."
The same can be said of the metal detectors used at the airports. They miss things left and right.
1
There is a very similar situation to the common urine test strip for drugs (specifically marijuana). No question in my mind this is a well known scam for small towns to pay for their police. A (generally false) positive test can result in an arrest, extraction of a large bond to get out of jail, then a large fine. OR it can result in the denial of a job offer.
1
Commentators mentioned government corruption, but the companies selling these defective alcohol detection devices are corrupt too. Need oversight of the police procedures, independent of the police department, maybe reporting to a legislative committee.
1
"These Machines Can Put You in Jail. Don't Trust Them". Very true but then again what choice do you have? If you refuse to blow that is equivalent to a guilty plea. The author should interview some people who have taken that route. In many cases they have paid dearly, both financially and in other ways. The truth of the matter is at the moment you're told to take the test, you have no good options.......particularly if you're working or lower class.
1
I've seen and experienced the rise if these units. The point to be made is there are not "analytical instruments", they are "machines." The first step on this rocky road are called "Standardized Field Sobriety Tests" developed back in the '70's that have no bearing on BAC. Moving onto the "Portable Breath Test" (PBT) results, most of these provide none testimonial evidence. Interestingly, the same instrument when attached to a printer becomes admissible evidence in courts of law. And while this article addresses the software issues, it does not touch on the biological variables that come into play. Initially these instruments analyzed "alveolar air" from the deep lung. Alveolar air was been long known to be impossible to obtain, so much so, it no longer is listed in the information in the training manuals. It is now "end breath samples for which no correlation to BAC has been established. Most states require a single blow which any scientist will state a single result is not analytically sound. There is no generally accepted elimination rate for ethyl alcohol, it is individualistic. How a person is instructed to blow has a bearing on the result. Telling a subject to blow hard until they are told to stop is not the proper method. There are many things that can result in errant results. The sad thing is to hear a judge rule that since there is no real alternative to breath testing, it's all there is and the court must accept the results.
3
If a laboratory in a hospital wants to perform a test that will be used by a physician as a basis for making a decision about medical care, that laboratory has to conform to the Clinical Laboratory Improvement Act if 1988 (CLIA), a set of federal standards to ensure that tests are accurate and reliable.
Legal and prosecutorial decisions can be just as life-altering as medical decisions. It is simply appalling that the tests that underlie those decisions are not, in 2019, being held to ANU sort of unified set of standards to ensure accuracy and reliability, let alone the ones that we routinely employ in clinics and hospitals nationwide.
5
Thanks for this. My son became suicidally depressed after his ordeal, and now I suspect the breathalyzer was defective. The interlock device he was forced to install in his car certainly was, and the installer did not care.
3
Many states take your driver's license away (suspend) and put a device(s) on your car (that you pay for, along with paying a hefty fine) simply for refusing to take a breathalyzer. This is strict liability, and there is no defense. It doesn't matter if you believe you weren't drunk and you didn't think the test would be accurate. So, you are now in the position that if you can't take a bus or get a ride to work, you will lose your job. And you are still charged with DUI and have to pay a lawyer, go to court, and defend yourself against the DUI. You still lose your license and you still have to pay the fines and you still have to have the device on your car, EVEN IF YOU BEAT THE DUI charge. These laws intend to punish you if for not taking a breathalyzer test, and you can't do anything about it.
6
I am a retired Drug Court Judge. Technology now exists to solve this problem that could save up to 10,000 lives a year. Interlock devices are used in many states after a drunk driving conviction. Mandate that all car manufacturers equip cars with interlock devices as they have done with airbags and seat belts. Over time, these testing issues will be eliminated since there will be almost no DWI arrests.
2
@Judge Charles Apotheker But the interlock devices don't work well either. Someone in my family got a DUI last year and one was installed in the car. For the first 2 months, it wouldn't work right. It repeatedly gave her error messages and the car wouldn't start. She had trouble producing enough breath just to give a reading. They re-calibrated to supposedly fix that issue, but then it continued to ask her to repeat the blow. It all culminated in her having to have the car towed from a parking lot after neither she nor her husband could get it to start. Finally she switched to a different company who determined that it was indeed defective and gave her a new one. And you think the general public should be subjected to this? Including people with no legal history, those who don't drink or have a proven track record of drinking responsibly, elderly folks, and people with lung or other diseases who can't exhale long enough to produce a reading? I don't think so.
6
@Judge Charles Apotheker I'm glad to learn you're retired. Your faith in equipment is touching. But it is not fact-based.
A nuclear-deterrent-reliable interlock certainly could be made. But it would cost several thousand dollars per unit, take-up most a vehicle's front seat or trunk (cargo space), etc. Even if car-maker's were willing, car-buyers would circumvent these devices.
There's a better and cheaper solution. Replace "driving while intoxicated" with "driving dangerously" and make the admissible evidence footage from a police cruiser's camera. Require a minimum number of seconds and require the "footage" to be preserved and shared with a defense attorney on his/her first request.
I don't care why someone drives on the wrong side of a road. Whatever the reason, such an action creates imminent lethal peril. And if a driver's blood alcohol content is 0.15, but they drive properly, there's no danger.
Those, who repeatedly drive dangerously - whatever the reason(s) - need to be behind bars. They cannot be trusted to use properly the privilege of driving on public roads.
I have written standards for industry,
An extremely important factor in producing the actual machine that does field testing is the accuracy of the "machine that makes the machine".The rule of thumb has been "10 times greater tolerance".
You can't carve a turkey with a spoon!
2
A breathalyzer is a medical device and should be treated as such. That prove had better be sterile and new before it goes in my mouth.
I suggest the handling and maintaining the devices is the root cause of this mess. These are probably dirty and grungy proves that sit idly collecting dust and other people’s breath.
I bet you that results would improve dramatically if the probes were disposable.
Imagine if your doctor were this sloppy when he/she were examined you while doing any type of probing on your body, and recycled unsterile instruments.
2
We know that, of drivers who get stopped by police, blacks are much more likely to be searched -- even though searches of white drivers are more likely to produce contraband. By extrapolation, sober black drivers must also be more likely than whites to be tested for alcohol. That would mean that blacks are disproportionately incarcerated by false alcohol-testing results.
1
I'm sorry for Mr. Mottor's "troubles". but he and a bunch of people drove their vehicles, with two coolers of beer, to a park and partied all day (in the hot sun) and then got into their vehicles and drove. If he and/or others had planned for designated drivers he would not have been victimized so terrribly by "the system".
4
The reality of DUI accidents is that they are played up by the local news media on prime time and reported erroneously to boot. My neighbor is a state cop who does accident investigations and says the media often misreports accidents using here-say and other non-useful sources of information. Meanwhile bad driving, such as red lights, failure to yield right of way and inattentive driving seems to get little attention overall by the media, other then the death count.
I often wonder how many bad drivers walk away from accidents they caused, to drive at zero penalty? In my own experience (of a parking lot incident where they hit me), LEO's often write accident reports based on who they decide to believe and the hell with the repercussions. Direct witnesses are often/usually ignored by LEO's and insurer's both as not being impartial.
We are left wondering what our own state , cities use to measure alcohol?
A few more pieces to this puzzle to consider.
a) Many of the hard-and-fast DUI laws are linked to federal funding and/or guidance. DUI deaths were a systemic problem back in the 80s and 90s, far more so than they are even today, and the federal government stepped in to help problem. That includes the .08 limit.
b) By extension, the .08 limit was never intended not to show that you're driving drunk or impaired. It is intended to be a hard-and-fast rule that says "don't operate a vehicle with alcohol in your system." It was designed as a strong deterrent to reduce alcohol related deaths. In that manner, it was like the speed limit. Statistically, both laws have worked as intended and drastically reduced the number of vehicle fatalities since their conception.
c) Breath tests don't win cases. Squad cams and mics win cases. We all know a drunk person when we see them. I'm curious to know what Mr. Mottor's squad cam looked and sounded like...
Lastly, I'd like to say that there is probably going to be some feathers ruffled in law enforcement over this article. A lot of good people put in a lot of time and do their best to make sure the system is fair and effective, and this seems to call them out. My response to those folks is to remember that articles like this are part of that system. Taking and responding to criticism is a vital part of public service. It is one of the many things that keeps us on our toes and always improving.
3
There are many organic compounds which can also give false increased readings. Many household solvents, windshield washer fluid, orange hand cleaners, I even did a test once on a machine that gave me a 15mg% reading from drinking a soda water with orange essence. Prosecutors in Canada fight tooth and nail to preserve the sanctity of these machines, and we had an amendment passed last year in Parliament that even makes it an offence to be over the limit after driving, to purportedly weed out people whose BAC is still on the increase. The focus in terms of harm should be on people who cause accidents, and serial offenders.
I work for a company that make a component for auto emissions control. Our product testing equipment is checked against standards daily. All equipment has written procedures for use and regular calibration. All analysts have written train records and annual refresher training. The lab is audited yearly by a third party. Anything less and we could not sell to the auto industry. When will we expect the same from our criminal justice system.
246
You stated it perfectly. I have experience similar to yours having worked for an FDA regulated company as an analytical chemist. I think I would respectfully decline a breathalyzer and request a blood test.
45
@Chris Can they legally test for "controlled substances" other than alcohol when administering these blood test? If so, cannabis stays in the system upwards of 30 days. I fear the police would charge me for cannabis I may have consumed in a legal state.
6
@Sue Salvesen. That is a valid concern, however, the exact levels of THC and THC breakdown products that are associated with impairment are still under investigation. Thus, unless the reason for the test was unsafe driving or causing an accident, one could likely challenge the concept that one was driving under the influence. Best thing to do though is to not smoke or vape and drive, and wait for at least 24 h or more before getting behind the wheel.
7
Breathalyzers are clinical diagnostic medical tests that require calibration standards, control samples and trained clinical laboratory technologists to perform the tests. None of these requirements are met. A Breathalyzer is not like a gun, taser, or handcuffs, they are far more complicated. No driver tested has any confidence that the Breathalyzer delivers accurate and reproducible results.
3
As I watch a popular television show that shows real-time police action, I question the PBT device as the police officer uses the device to determine level of intoxication. Those questions-when was the device last calibrated by an independent, that is a lab with no "skin in the game" for convictions, laboratory for accuracy? What is the inherent skewness in the device?
My department at a former employer had a laboratory for various types of testing. And on a scheduled basis the instruments and equipment required validation activity to insure accuracy was achieved. That validation, or calibration, was conducted by an independent lab-you know, to eliminate the fox in the henhouse issue.
In reading this piece it appears a fox in the henhouse scenario exists along with zeal to gain as many convictions for drunk or impaired driving as possible, and, those agencies are loathe to admit there may be errors in the devices used in gaining conviction. And the manufacturers of these questionable devices will not cut off their noses are circling the wagons with legalese.
No, I do not condone drunk or impaired driving. But, what I ask for is honesty, truthfulness, and the presumption of innocence. That presumption is taken away with questionable tests and the equipment used for those tests.
Sounds like many law enforcement agencies have some explaining to do.
5
Quote -- "...Throwing out tens of thousands of faulty breath tests will inevitably let some dangerous drivers back on the road. Let’s not fool each other,” Mr. Bernard said. “The question is, whose fault is it?...”
Does it matter whose fault it is when an impaired driver crosses a center line and kills himself or a family in another car?
The main issue driving the concern in the article seems to be avoiding the immediate punishments to the impaired driver (lic revocation, ins rate hikes, legal fees, jail, etc). Without those, the article would need to focus on the primary public safety issue of getting that impaired driver off the road as quickly and safely as possible.
To be clear, I'm all for reforming those immediate punishments. With the ubiquity of dash cams, if you are recorded driving in an impaired manner (let legislators define those criteria), then it does not matter "why" you are impaired. Whether it's due to a legal or illegal intoxicant, sleep deprivation, medical condition, face buried in a cellphone -- you were driving in an unsafe manner that endangered others.
The only question the court should have to determine is if a reasonable and prudent person in the same circumstances could have decided not to drive in that manner in those circumstances, whatever the circumstances are.
Lastly, legislate as a felony, willful malfeasance by any public agent and to a lesser extent, "mistakes" due to not knowing/following written policy.
3
Here is a thought...don't drink and drive in the first place. Use Uber, Lyft, a taxi, or a designated driver. It is not worth the risk.
10
@Lyn Robins That's actually a big factor in drunk-driving arrests plummeting over the last 5-6 years in many jurisdictions — which is great. Prosecutors I interviewed said Uber and Lyft have had a really noticeable impact.
5
@Lyn Robins no one is condoning driving under the influence. The issue is that these tests will misread blood alcohol levels to such a degree that mouthwash, hand sanitizer, breath mints, hot breath, and burping will trigger a misreading. This means people who aren’t breaking the law may be forced to undergo a trial and all the time and expense that entails, while people who have broken the law and perhaps seriously harmed others cannot be prosecuted because a crucial part of the state’s case is now inadmissible. This is obviously more nuanced than “don’t break the law”. Innocent people stand trial all the time, this is yet another example of a system that supposed to protect all of us coming up dangerous up short.
6
I found myself wondering what would happen if the courts let the drunk drivers go without penalty. We all know there are drunk drivers on the road.
Then I found myself angry that too many innocent people's lives were ruined because of faulty tests.
But what really angers me is the casual attitude of law enforcement, and the manufacturers who will say or do anything to continue selling machines for profit at the expense of people's lives and freedom.
The answer starts with manufacturing and calibrating a reliable machine, and holding the manufacturers to a high standard. But here we are in America - profit before people.
4
I would appreciate a recommended approach when one has ahead a drink, but the police continues to push to follow their full protocol... should one simply refuse? There are consequences to this approach and they vary state by state, but ... are they better to live with than a false conviction for DUI with all its automatic consequences?
Even one drink can seriously affect one's ability to drive a car, especially in this day and age where distracted driving, even when the driver is stone cold sober, has lead to deaths and serious injuries of innocent drivers.
In order to successfully drive a car a person needs three things:
1) good judgement
2) good eyesight
3) good reflexes
Alcohol adversely affects all three.
So basically this article is talking about the degrees of intoxication, that the Intoxilyzer machines may be off in how it calibrates the degree of intoxication.
As a retired police officer who has investigated fatal auto accidents where alcohol was a major factor in the death of the other innocent driver, I am bothered less by whether the person arrested has a .08 BAC in his/her blood or a .15.
Until we come to grips with eliminating ANY drinking and driving we can argue this point until the cows come home, but innocent people are still going to be hurt and killed by drunk drivers.
Ironically, the more one drinks the more one feels that s/he is in control. Just the opposite is the truth.
4
@Len As someone who has won a pro se appeal in Superior Court against a police officer who testilied his way against me on a traffic charge, I'm bothered by cops with your attitude toward legality and accuracy. The issue isn't just the difference between 0.08 and 0.15 but between 0.08 and 0.00. If a 0.00 BAC registers as 0.08, we have a problem. And the article makes clear that that can happen. The number of legally innocent people you've arrested matters as much as how many fatal accidents you've investigated. With your attitude toward accuracy and legality, how much credence can we put in your accident investigations?
15
@Len
I appreciate your background and position.
However, convicting hundreds of thousands of people a year with false and falsified evidence is just as important - since you are effectively destroying their lives.
Remember, police officers have fought aggressively for year to prevent the use of body cameras ...
6
@Irfan Khawaja
I can fully understand your point of view, and certainly getting arrested on any charge can be a life-altering experience.
But in cases of accidents where death resulted, the body of evidence that may point toward alcohol being a factor is diverse, to include not only a breath, but a blood test, which is the gold standard for determining the blood alcohol content (BAC) in a person's blood.
My point was that there is a greater issue than the degree of intoxication in our society today, and that is the prevalence - even the acceptance - of drinking a few beers and then getting behind the wheel to drive home.
Innocent people die as a result of that decision.
1
I was in a sorority who used a local police station's breathalyzers for some of our bigger functions to prevent underage drinking and pre-gaming. I was on council and would administer these tests occasionally. The results were wildly off from what we witnessed. People who I personally knew didn't drink would show a BAC. We used them as a deterrent, but we never threw anyone out based on the results. How funny that we thought it was unfair to use them to kick people out of a party, but the government uses them to put people in jail and essentially extort them.
8
This is a good article, but it gives the impression by default that field sobriety tests are legally compulsory on demand and accurate. They're neither. You can't be compelled to take a field sobriety test. They are problematic enough if administered under test conditions, but there is no way to ensure that they are administered under test conditions. There is also no feasible way of doing discovery on field sobriety test results, and no effective way of uncovering exculpatory evidence. The problems of accuracy with the breath test pale in comparison with those with the field sobriety test. Perhaps a separate article is in order on that topic (unless I've missed it).
1
Most people who drink drink too much.
How to beat the machine; Take in a big breath, hold it, flap your tongue and lower throat to cause air movement for the machine, pretend you are exhaling with body language for the police. Don't give the machine air from the lungs.
1
Having spent years as an over the road salesman in the healthcare industry, I have seen many traffic accidents with the yellow crime scene tape around them. That means a fatality. The worst accident scene I saw was when a semi truck's anti sail device came loose and ended up going under a van killing 13 children. The semi driver could not speak a word of English and got his CDL/truck driver's license by paying a bribe. The investigation involved giving large kickbacks to state of IL officials as a bribe to get their CDL. At one time there were 3 former IL governor's in the federal prison located in IL.
When a cop stops a truck driven by someone with a CDL suspected of being intoxicated, the cop is required to get the breath test by a hospital that is located 25 miles of less from the site of the stop. One of my favorite small hospitals was located just off I80 in IL and sometimes one would see a 5 axle rig parked in their parking lot, with the driver in the local jail.
Previously I worked for a large consumer products company in Atlanta and when driving home late Friday night going north on I71, I would see driver weaving around on the highway. Next morning I would drive to my local supermarket, and invariably I would see cars in the ditch as a very popular night spot was located in the same shopping center as the supermarket. Having seen the carnage caused by impaired drivers, yes the breath test is imperfect but the slaughter must be stopped!
No one should have a right to drink and drive. Choices have consequences.
Also, never trust a police officer and never volunteer information. Trust me
As I recall there was a similar issue with Radar Guns and Speed traps years ago resolved by a promise that the authorities would be more diligent in the future? Well, this is the future, has anything changed? Mr. Mottor is still paying off $30,000.00 in debt. Sure he pleaded guilty to a lesser offense was that because he was guilty or beaten? Juries are inclined to rule against the defendant in the presence of a test, accurate or not. The new toy of the day is the camera whether it's a red light or toll violation. You can contest the charge and immediatly become liable for court costs. Fail to hire a lawyer and find yourself facing some ADA who can dispose of cases like yours in his/her sleep. This is all about winning and revenue. Where is the justice? Before indignantly embarking on some quixotic endeavor to protect your rights you might consider that saying "You can't fight city hall". Just pay, it's the American way.
49
@DAVE How is a charge that leads a defendant to jail, not to a fine, about "winning revenue"? The "this is a cash grab" mantra by speeders and red-light-crashers is getting old.
If you are stopped and asked to take a breath test, refuse (your legal right) and instead, ask to have a blood test at a hospital. Drink a lot of water on the way to the hospital, go the bathroom once you get there, and then have the blood test done. And don't drink and drive.
3
Incompetence and corruption. The police are inept.
DUI arrests are a racket. Officers are paid a $300 bonus for a DUI arrest. The court threatens the defendants with long jail time or prison sentences extorting guilty pleas when in all likelihood a jury would return a not guilty verdict but the risks are too high. Lawyers would rather negotiate a reduced sentence than spend their time in a courtroom. It's a rigged system.
2
Like so much in the so-called justice system it is about raising revenue not preventing drunk driving
3
In Minnesota, a judge ruled last year that the state’s machines appeared to be rounding up results, falsely nudging some defendants over the legal limit. (A spokeswoman for the state’s testing program said the judge misunderstood the technology.)
‘Up is up’ spokeswomen. I’m repulsed when a state won’t take responsibility for its failures. Maybe this spokeswoman, since proven wrong, will get reassigned, demoted or fired. And let’s not forget to cancel her pension.
1
Laws citing blood alcohol levels should be enforced with only by testing blood drawn medically. Any other approximation does not meet the criteria. Unfortunately, there are penalties for insisting on a true test. This is similar to "red light" camera that tickets a car's owner a ticket without verifying a driver, calling it a "civil" crime.
5
This is what happens when law enforcement is allowed to act, free of outside audits. It is injustice, and it goes against the oaths of office that all police and prosecutors take.
What is most appalling, is the cost to the victims of these crimes, and the fact that the governments who have worked so hard to cover these crimes up, are not forced to reimburse these victims for every penny they have lost in terms of defense and lost earnings. As well, the the people who have willfully operated these machines while defective and inaccurate seem to walking away, free, even without losing their jobs. Frankly, their pensions should be confiscated and used to defray the costs the states should be subject to, in reparations to the victims. I am fairly sure the taxpayers of these states did not intend to see their tax dollars being used to coerce and extort even more money from the very same population.
And, let's face it, it's all about the Benjamins, isn't it?
3
The next step to investigate is the ignition interlock industry. Same manufacturers install mandated devices in vehicles to allow those with DUI charges to drive. How many false readings lock people out, making it difficult if not impossible for people to get to work, or extend their "sentence" of having to have the device in their vehicle? And pay for the privilege?
1
This is a great article on a difficult subject.
I want to thank Ilmar Paegle. I hope he reads this and appreciates the sentiment.
His actions were a great example of a public servant choosing the harder right over the easier wrong.
I have no doubt it was difficult to challenge a source of income for the local government which employed him. He chose to stand up for truth and justice for the citizen ... people much like Matthew Mottor who don't or barely have the resources to fight wrongful accusations, arrests, or convictions.
Thank you, Ilmar.
7
A friend who is a lawyer said that you should always agree but ask for it to be done at a hospital. They do it via blood.
5
What this article doesn't say (unless I missed it) is which way the machine inaccuracies lean: higher vs lower than true percentage? How many genuinely innebriated people are allowed back on their way because the machine says they're legally sober? ( few, likely; notwithstanding, another potential problem with these machines -> not only innocent people fined and losing their license, but innocent others getting killed because of machine errors).
1
Great article that touches on a wider range of criminal justice issues. Should be read by every American.
2
I was stopped late at night, and suspected of drunk driving and tested and arrested. I don't have good balance technique for standing on one foot or walking in a heel-toe straight line when it's normal waking hours and I'm completely sober, I'm tall, overweight and have flat feet and naturally clumsy. But based on the usual balance tests, they decided to test me with a breathalyzer. It took them several tries, with me complying with their instructions completely, before they finally got the result they clearly were after. It was clear to me that it was already decided I was going down, and they were going to test me over and over until they got the result they wanted. They never let me see the device's display on any of the failed tests nor did they show me the display when it finally supposedly indicated 0.08.
I was arrested, but didn't receive the Miranda rights warning, but it was marked that I received it on my paperwork.
Additional malfeasance ensued throughout the rest of the predicament, and I could go on and on.
I wasn't sober, but I think I was railroaded to an indefensible position of being guilty. It was terribly expensive and completely changed my life.
2
Just wait for the driving while high instruments...waste of resources.
@Elyssia There is a program for driving high, it's called a "Drug Recognition Officer." It's another hocus pocus test that relies on a urine test. This is interesting because even if something is found, it cannot be determined how long it has been in the system.
1
Why is DUI treated differentky from other sources of impairment? Someone who is weaving and out of control should be off the road, regardless of whether they're drunk, exhausted or left their glasses behind. The focus on cause is misplaced.
3
The level of rank incompetence here is totally appalling but not surprising. What is necessary here is a blood test and a test of motor/cognitive impairment. A person sufficiently impaired as measured by objective competent tests should not be driving whether drunk or not. If not drunk, its even worse. Such testing should be preformed upon obtaining a license to see if driver qualifies. Its outrageous the police and their support is as incompetent as they are.
Only in America...
In Germany, you can only be convicted if the police did a blood test. It has been well known for decades, that breathalyzers are unreliable. But thats how it works in large parts of the US: Never do the things they do in Europe. Because... Freedom? Or fear of Socialism.
That's what you get when half the country gets told every day on TV that 'experts' are out to get you and infringe on your freedom.
20
Only in America do we import German products based on German expertise and then get lectured by Germans about how distrustful we are of "experts." If you can only be convicted in Germany via blood test, why is a German company sending us Breathalyzers, defending their use, and demanding trademark protection for the word itself?
The difference might be, that lobbyist are much more influencial in US politics.
But the problem isn't even the use of the Breathalyzer itself, german police relies on them for initial tests too, but the use as evidence in court.
I think this only adds to the mountain of evidence, that on the local level, as well as federal and state levels, the US has a big problem a part of its population, who are not only critical when it comes to experts, but despise them. And they get exploited by politicians and lobbyists who channel this resentment to andvance their own interest.
Climate change is another example for it.
@germanliberal Drager, claiming expertise, is not telling its US users to restrict its use to preliminary alcohol screening. It sees no difficulty in marketing these products to American users in the full knowledge of how they are being misused. There is a good reason to distrust experts like this: their expertise is clouded by their financial interest in their product. Evidently, the profit motive applies in Germany as well as the US, and with much the same result. In any case, the idea of questioning expertise is not American, but ancient Greek. It was pioneered by Socrates. Germans have as much need of Socrates's influence as Americans.
1
There's no money in machines that are accurate.
3
Yet another good reason to never trust the police or prosecutors.
3
Solid story. Props to the reporters.
4
And if we think this is bad, wait until the speed radars get tested (and it becomes common knowledge that police officers can get cancer from them) along with the red light cameras... and the faulty facial recognition software... government isn't interested in safety, it is interested in revenue...
2
The makers of the machines get to make money, and the police departments can meet the demand to do something about drunk driving. In a legal system that relies on plea bargains to keep costs down, the breath tests are par for the course -- just another scam to keep profits rolling and the public happy that laws are being enforced and people are going to jail.
The scam is harder to keep going because it affects more than the poor.
1
Let me start with the fact that I rarely drink however I used to rarely not drink though that was many years ago. Never was caught or charged with any under the influence or worse even when stopped for having long hair. I am now vehemently anti-drunk driving. As a born and bred NYC resident it's even worse since you can really get almost anywhere for $2.75! But, I am almost as vehemently against the methods used by Police. I have watched the numerous Live PD stops and I couldn't pass a test to save my life now. I have spinal stenosis, arthritis and as someone who had been very athletic 20 years ago I could pass it drunk then, but not sober now. Years driving on Long Island you'll notice almost every bar is in a parking lot. There was a very well known club in the 80's near the Nassau Coliseum. It broke at 2 AM and they used to set up a check point on the west bound side of Hempstead Turnpike a divided road that required everyone going west to leave east bound and drive to the left turn around to head back East. That gave drivers about 1/2 mile to get to the checkpoint which was actually close but a drunk could easily have killed in that 1/2 mile! One cop car in front of the exit could have stopped everyone before they got in their cars if they really were there to prevent drinking and driving not just to make arrests ( AKA $$?) You don't win a war by knocking off one person at a time. I am also pro cop so it's the system not the individuals.
The great number of DWI cases in New Jersey do not go to trial.
They are resolved through the discovery process where the state must provide information showing beyond a high evidential standard that the machine was in working order, that the person operating it was qualified and that the reading was accurate.
The rule of law is upheld and adhered to in New Jersey.
Every time we have an algorithm determining the fate of humans, we need to examine and re-examine its application and the transparency.
Draeger would do well to allow complete transparency so that we would not have stories like the current one, reporting aberrations and human failures interacting with the machine.
1
For the casual drinkers, if you are confident you are not above the .08 level, demand a blood test. If you think you may not pass, then don't get in the driver's seat. The lesson from this excellent article is: Don't take a chance with breathalyzer roulette.
6
One very easy, neat solution to this issue is to simply refuse to drink and drive.
10
This problem is not a technicality. The simple fact is that operating a potentially lethal machine under impairment decreases your ability to operate that machine.
In the United States blood alcohol concentrations are frequently much higher than allowed elsewhere in the world, such that even if the test is reading 30 or 40% higher, that person is still significantly reduced in their ability to drive. It's time we stopped considering drinking and driving acceptable when it occurs below a magic number.
2
@George This is true. England has the same high limit as most US states. Lines have to be drawn somewhere.
However, in England if the breath test at the station shows a concentration of less than 140% of the limit you have to be offered a blood or urine test.
A first conviction results in a loss of licence for a year. A second within 10 years results in a 3 year ban and up to 6 months in prison.
Maybe following the simple advice of don't drink, take a cab or have a designated driver is the best way to never have this issue to deal with.
8
@Si Seulement Voltaire
You could be convicted by a faulty machine even if you don’t drink.
3
Australia has had a regime of random breath tests for blood alcohol levels for many decades. There’s no walking the line or standing on one leg etc. the system seems to work perfectly well and the general public have full confidence in it.
Police rely entirely on small hand held devices and if the driver registers over .05, then a more sensitive machine is used back at the police station.
Police can stop a vehicle at random and request you to take a breath test. During the test, police never request to sight your license and it all happens in a polite and respectful manner.
2
The inaccuracy of breath alcohol tests is the topic of the whole article, and roadside devices followed by station based devices is exactly what was described. Both were found to be inaccurate. Are the devices used in Australia so different than the ones used in the US?
3
@Cate I'd imagine Australia uses the same inaccurate machines as everyone else. In England if your breath reading is less than 140% of the legal limit you have the right to a blood or urine test. That's a tacit admission of a known margin of error in the machines.
1
The report exposes corrupted test lab management, unreliable test machine design and maintenance, questionable police practices, and the legal system has not protected innocents in a fair and square manner.
The machine manufactures are the fundamental source of problems and should be liable to all these unreasonable legal harassment, but no improvements on the horizon, neither any fines levied to the machine manufactures.
Those having cheated with lab tests should be prosecuted also.
1
Why is there no alternative method of testing such as blood collection and testing at the police station? The suspect has already been taken into custody anyway. That way any errors are singled out.
3
There is. Refuse a breath test. Agree to a blood test.
3
The solution is very simple: blood tests.
In Italy, the police use the breath test as a first step.
If you are positive, the police take you to a public hospital for confirmation by blood test.
This is because if you want to put people in jail (or suspend people's driving licenses) you must necessarily have very accurate results.
In addition, blood testing is useful in obtaining overwhelming evidence against the (real) responsible of DUI and thus get dangerous people off the streets.
15
Thank you for this excellent reporting. This is why I subscribe. It's astonishing that we can't guarantee accurate testing for something so important -- not only to protect the public safety but to protect against wrongful convictions. It's yet another sad commentary about the state of our "justice" system. I don't want drunk drivers getting off the hook, of course. But we also shouldn't be locking up and ruining the careers and lives of citizens who don't deserve it and force them to go into debt by paying tens of thousands of dollars just to try to clear their names. We're better than this.
3
There findings will have significant ripple effect in American society. It would appear that for a while now and for the foreseeable future, DWI convictions will only affect those who cannot afford a good lawyer bringing this offense in line with so much else in our criminal justice system.
Beyond alcohol, there will be a ripple effect on irresponsible use of other substances like cannabis. Like alcohol, driving while under the influence of cannabis is a very unsafe and irresponsible act. In VT, the current Governor is holding out on signing legislation that will open up a legal marketplace for cannabis, which is already legal to consume in the state. He wants to wait for an accurate and reliable test to be developed “like there is for alcohol”. Well, now the question becomes, does he now ban alcohol consumption because there seems to not exist an accurate and reliable way to test blood alcohol levels or does he drop this Trojan horse argument and sign the legislation that is likely to hit his desk inJanuary of next year. Of course, he is a republican and hypocricy is a cornerstone of that party’s platform so who knows what he’ll do.
3
@Mike In Vermont
Pot can take far longer than alcohol to clear the body, long after its effects wear off.
1
"In most of the country, the threshold for illegal drunkenness is 0.08 grams of alcohol per 100 milliliters of blood." Note that the legal standard is not the level of alcohol in breath. Yet the Breathalyzer devices are being used as a proxy for blood alcohol levels.
Put aside the proper functioning of the breath analyzer as a machine and all the problems of maintenance, calibration, and reproducibility of the test, The real question is how closely the breath analyzer results compare with actual blood alcohol levels, the legal standard.
The testing required to prove the actual correlation levels between the breath tests and blood tests would likely show that the two are actually testing for rather different things. The ambient alcohol in the mouth is going to be dependent on whether the mouth that was rinsed after the last alcohol was drunk. Thus, water, coffee, or coke chasers could skew results wildly, and miss very drunk suspects with low mouth alcohol.
In good science experimental design is a key to useable results. Tests of secondary values like breath levels often fail to correlate with the answer sought. GIGO.
q
4
If someone is sure that they were under the limit, could they ask the police to have a blood sample tested, or have it done themselves by a independent laboratory?
2
This is the key to the whole problem: "He is still paying off the roughly $30,000 he accrued in fines, court fees and legal bills." Courts, defense attorneys and insurance companies are facing the loss of millions of dollars in revenues by ensuring that these machines are accurate and there is no penalty to any of them for using these inaccurate machines.
18
@D. C. Miller
He should not have had to pay his lawyer who missed the crucial fact that I judge had disqualified the test results!
1
Excellent article. As a former prosecutor, these breath alcohol machines had to show that a calibration test had been run prior to the test, and that the machine's certification period had not expired. Now that being said, if the science itself underlining what the machines test is bad then by all means fair is fair, throw out the test and use other evidence and get the science right.
Ultimately, please don't drink and drive and put yourself or others at risk by thinking that avoiding a breath test or the breath test being thrown out will allow you to escape a conviction. The breath alcohol tests are only one piece of evidence. I still won cases where defendants had refused to take the breath tests or the tests were thrown out. Keep in mind, even with all of the evidence against them people charged with a DUI/DWI are in denial of a bigger problem, they've got a drinking problem.
3
@Zdude
You cannot conclude from a single instance of being drunk that someone ‘has a drinking problem.”
That sounds to me like prosecutorial bias.
3
You ignored the concept of correlation studies. Crime labs often use test subjects to do blood draws at various intoxication levels and have the subjects blow into a breath testing instrument for comparison. They then compare the blood alcohol results to the breath alcohol results. These studies have shown that breath test instruments are just as reliable as blood tests.
2
@Veejay I think you want to say "that breath test instruments can be just as reliable as blood tests". Machines have to be properly calibrated and used correctly.
Testing is a statistical process. If you run 100 tests with process that is 99% reliable, the odds are that one of the 100 tests is incorrect.
3
These are preliminary alcohol screening (PAS) devices. Convictions are hardly based on results from these devices. After arrest, the driver is given a chemical test (blood draw or breath instrument), the result of which is the true evidence of a DUI conviction. The vast majority of times, a PAS result is consistent with a chemical test result. Your article completely ignores chemical test results.
2
@Veejay
The article contradicts your assertion.
Innocent people have been coerced into pleading guilty based solely on unreliable breath tests.
7
Technically, you may not enter Canada for up to 10 years after ANY DUI. It's considered a felony there. Lots of Americans have been turned away because of this.
1
Glad that NY Times is discussing this issue. As a public defender we are always fighting to obtain calibration logs, operator certifications, etc. My personal opinion is that a blood test should be the standard and then the retrograde extrapolation calculation applied; its unfair to apply the calculation to a machine that is often suspect to start with.
6
Besides your license, registration and insurance, you don't have to do anything or say anything to the officer who stopped you. Especially those ridiculous field sobriety tests. Treat a traffic
stop with great caution. Your life may be turned upside down like the gentleman in the article.
3
Do you have any reporting on ignition interlock accuracy? These are devices that some judges will order to be installed (at the driver’s expense) on cars of DUI convicted persons, knowing that some will keep driving even with a suspended or evoked license.
https://en.wikipedia.org/wiki/Ignition_interlock_device#Operation
If interlocks are accurate enough, why can’t breathalyzers be equally so. Or are they?
2
As a pathologist, I am appalled by what has been reported in this article. Any laboratory test is only as good as the instrument and the users following accepted practices in calibration and quality control. These are the same concerns we have with the growing numbers of point-of-care and home testing devices. Even if we are dealing with a reliable device, proper use of the instrument is critical, and regular quality control testing and re-calibration is not optional. Hospital labs would be out of business if they were as sloppy as police have been with these instruments, and we would lose our licenses and likely be in prison if we faked results or hid bad quality control data.
This just confirms my opinion that everyone who is accused of DUI should insist on a blood test performed by a qualified, certified laboratory instead of a “breathalyzer” run by police, who are excellent law enforcement investigators, but poor lab technicians. States should legally allow this option for anyone being investigated for DUI. Not to mention that the breath machines only test for alcohol when you can look for many other intoxicating substances with blood testing.
27
To me there is no difference in using a corrupted machine data or a corrupted cop testimony to gain an conviction.....both wrong !!
6
Full investigation of the manufacturers — NOW.
5
The issue is very simple the breathalizer should not be admitted as evidence. Only blood tests should. If you are arrested on a breathalizer, demand a blood test. For those who have been imbibing, it gives you additional time for your BAC to go down. Although there is a formula to figure out what your BAC was when you were arrested, the formula has enough assumptions baked into it that any decent lawyer can have the calculation dismissed in court.
Simpler yet... DONT DRINK AND DRIVE!!
14
Insufficient significant digits robbed tens of thousands of Americans, and contributed to too many "insufficient funds" in their bank accounts across the country.
This article should force states and municipalities to reexamine law enforcement practices to insure that taxpayers are NOT on the hook for their very costly errors. Every DUI attorney should seize on the details in this revealing article.
It's like: who would buy or lease a bunch of hospital equipment that could not bee certified from the seller...?
3
Thank you for this excellent investigative reporting! Articles like this are exactly why I still subscribe.
2
Well, this is good news for drunks.
4
In the last 60 years, over 1 million people have been killed by drunk drivers, and 3-4 million injured, many seriously. If one million are arrested for drunk driving each year, 10 times that number are driving drunk each year, and not arrested. If you talk to someone who has almost died from wrapping their car around a tree, luckily no one else was inured, they tell you that most drive, even after their license is suspended. Therein lies the reason one million are dead, because a device could of been developed, a simple, inexpensive one that would of disabled the car for a year. That is the price people should pay for drunk driving, even once. Obviously, this piece is clueless about how many people drive drunk on the roads in America each and every day.
5
Well, true but sad...what you're missing is the point of the article. Which is, it appears, yet another failing of law enforcement to behave in any sense in a proper manner. The false results also ruin lives - do you get that?
16
@ MKK, this article is about the technology and defendants rights against an obviously unreliable, unstandardized clinical diagnostic medical device delivering anomalous results. In my humble opinion, distracted driving is more commonplace, or prevalent, and far more dangerous than drunken driving. How do you measure distracted driving?
Just another example of the over-reach that police forces across America are guilty of.
8
In attacking DUI convictions, these reporters join countless cheesy lawyers who run local TV ads at 3 AM. Like fish, they — and their arguments — begin to smell after 3 days.
Ben Franklin
2
Also, for many people this has a professional impact. I’m a pilot, if you even get charged with a DWI as a pilot you have to report it to the FAA, and you can lose your medical certificate.
13
Too bad so few people have technical educations. You don't need a PhD to get this stuff right. Even a good associate's degree in chemistry or chemical technology would equip people to help lawyers see what to do: challenge calibration, demand documentation. Judges should have some basic technical knowledge too. If I got caught suspected of DUI I would demand that the officer take the test with me so that our results could be compared. If he showed up "drunk" too then I think the result would be different.
7
I know we have to submit to alcohol testing when asked, but what are our rights regarding insisting on a blood draw?
As an aside, on my best day I wouldn’t pass a field sobriety test. And I’m confident that my old gym teachers, my mother, my partner, or anyone who has seen me dance would attest.
4
The obvious answer all along was to run TWO tests on two different machines to assure fair and accurate results.
This is just another example of how the criminal justice system puts it's fingers on the scale when it should not.
People's lives were seriously damaged and the primary response of the criminal justice system was to ..circle their wagons...
6
Very informative reporting, but the real news is that George Smith was arrested in 1897 in his ELECTRIC CAB!
8
Urine tests are also notoriously unreliable; I lost a seasonal job at Bloomingdale's several years ago because I had eaten a poppy seed danish for breakfast the morning of the day I took the test.
While I was gathering documents to sue Bloomingdale's—pro se, because no lawyer would take my case since I hadn't been employed long enough before being fired—I became aware of just how common false-positive drug tests really are. [Cf. the Seinfeld episode in which Elaine eats poppy seed chicken and then fails a drug test.]
The scariest thing is how much credence people have always lent to the results given by breathalyzers, and the potential they have for ruining lives.
7
@Fallopia Tuba. An early episode of one of my favorite TV programs, Mythbusters, dealt with that exact scenario, and showed that eating poppy seed bagels or cake causes standard urine tests for opiates to show a false positive. I miss that Show! There is a reboot, but nowhere near as good as the original!
5
“The devices, found 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.”
Skewed too high, or skewed too low? That is a vital fact that you leave out. You criticize these machines for not being accurate. What about your own analysis - do these machines ever skew too low, letting DUI drivers go free?
I’d like to know if you found that to be so, but left it out because it did not fit your narrative.
6
Actually it would still fit their narrative: that the equipment is not properly set up or maintained. Both scenarios, innocent being falsely convicted and drunks being released, are bad.
As I was reading this article the thought that was in the back of a mind is how much of a cash cow DUI convictions are to a local government. Of course I have no figures so I really have no way to say.
But given the behaviour of local governments who depend on traffic violation fines for a large portion of their revenue, it is a valid question.
What you are describing is something that is too thoroughly systemic and too obtuse to be attributable to chance, or even to garden-variety incompetence. It is almost as if there is actual malfeasance here, and it is almost as if it is deliberate.
But also I am quite sure that nothing like that would or could ever happen in these here United States of America.
Nope...
9
Very interesting article. A related issue is the (lack of) calibration of radar speed guns used in law-enforcement to measure the speed of moving vehicles.
True story: years ago I lived in Frisco, TX. One morning, when I was driving near my house, a city police officer stopped me for speeding (I wasn’t). When I asked the officer to see the radar speed gun’s certificate of calibration he said that it has been recently calibrated but he was unable to show me the certificate (not even a copy). He said the original certificate was at the police station. I submitted a formal requested to the city police for a copy of the certificate and, after weeks of stonewalling, the police had to admit that they couldn’t provide any certificate (none, not even an old one). During my hearing I explained what happened to the judge; he said that I needed to schedule another hearing with a local prosecutor present in order to get the speeding ticket dismissed (I remember the judge didn’t give me the impression to be particularly surprised by the issue). After the hearing the local chief of police came to see me to offer his apologies (he seemed honestly sorry for their mistake).
For the record I ended up pleading no contest and paying a reduced fine because at that time I was working out of state and it would have been very inconvenient for me to show up for another hearing mid week (of course no Mon of Fri hearings could be scheduled...)
9
Recently there was a similar report on field drug testing inaccuracies, the take away is: don’t leave your house unless you have an immense amount of money for bail and a good lawyer.
5
@Big bruiser ....and liberty and justice for those who can afford it.
3
Yea, hey fellow dems, let’s advocate for more government overreach and higher taxes!
2
yeah, hey fellow Republicans, let’s advocate for more Police overreach without accountability.
9
This puts to rest the argument against cannabis legalization that authorities can accurately test for alcohol intoxication but cannabis consumption remains unquantifiable.
7
Journalism like this is why I feel the Times is very worth the subscription. I worked at one time for the state veterinary diagnostic laboratory system. I took more care to ensure that thermometers were giving verified results than these people are on instruments that can send people to prison and ruin them financially. I don't condone drunk driving at all, but what is outlined here is fraud, a total lack of scientific standards, and prosecutors seemingly eager to rack up convictions regardless of actual justice. Seems to me that the makers and users of these 'instruments' have an awful lot to answer for.
30
I wonder if states keep using these tests because the companies that make them contribute to campaigns? I can't think of any other reason why any state legislature would allow these testing machines to remain in use. Has The Times done an analysis of campaign donations to state legislators from these alcohol level testing companies?
6
It's really just a matter of time until these two reporters win a Pulitzer Prize. Keep up the amazing work.
7
In virtually all stops where impairment is suspected, the first test administered is the Standardized Field Sobriety Test. It is not a precise tool but it produces helpful information for the cop on the scene. It has been a part of the process since the Middle Ages. Don’t bother pointing out that the FST is not always accurate. Every cop knows that. My point is that the video ignores the virtually universal practice of administering the three part test. (There is fleeting reference to one or another of the tests.).
This piece attacks the process while ignoring its linchpin. It’s like attacking college admissions without reference to the SAT’s:
Father : How could they have admitted our neighbor's kid, who has said so many stupid things?
Mother: Oh, I forgot to tell you, she got a perfect score on her SAT’s.
@michjas I believe if you read the article, you would see why some people fail these tests that are not intoxicated. Then what? Also, what if someone, like me, is extremely nervous around the police and may not respond soberly even when completely sober? When scared, one may not be able to cite the alphabet backwards quickly. Heck, I have trouble doing that when having no alcohol at all.
15
@Sue Salvesen I suggested that you not bother challenging the FST. You chose to ignore me. You have hurt my feelings.
@michjas The Field Sobriety Testwas never subjected to peer review and the statistics used to justify it were badly in error. It is a false positive rate of about 50%, yet for drugs other than alcohol no legal limits exist and the FST alone may result in conviction.
1
The title is misleading. It's not that the machine can't be trusted per se. It's the police, prosecution and labs that can't and shouldn't be trusted. They intentionally falsified results, withheld or suppressed evidence, all for false convictions likely into the millions over decades. Some important conclusions should be drawn. 1. If they repeatedly and on a massive scale falsify this evidence, it must be concluded that they are doing the same with ALL evidence. These are not bad apples. This is the work of entire departments, states and nation-wide. Any juror must bear this in mind. 2. This article focused on the pseudo-science and bad faith used to convict for drunk driving. The same has been found for fingerprint "experts," fiber, blood-spatter, arson, bite marks, bruising patterns, etc., where no scientific basis actually exists, and where results and testimony are regularly skewed to favor prosecution, who pays the majority of these "experts." There are some 12 million arrests a year, and a legal system that exacts a conviction rate of approximately 99 percent (including 96 percent guilty pleas under duress). Not even Stalin could have hoped for better confession and conviction rates. This is the reality of the very criminal justice system. More telling is that the cops, lab techs, bosses and prosecutors, who knowingly conspired to convict and destroy people's lives, are not sent to jail, which tells them to keep it up.
13
Challenging breathalyzer tests is a cottage industry. 2 billion defense attorneys have spent ten times the US GDP trying to prove breathalyzers unreliable. The quest has resulted in a host of victories in local skirmishes. But that is all. Think of this effort as the search for the Fountain of Youth. 2 billion have tried and failed. Two Times reporters claim they have found the Fountain. They’re either the best explorers ever or they are Ponce de Leon.
1
First: The obsession with driving in America causes people to fundamentally misunderstand what DUI laws are about. Being DUI is not being 0.08 or above. Being DUI is driving while affected by alcohol and/or drugs. For many people, motor skills and judgment will be affected between a 0.04 and 0.08. This is why most western nations set the BAC limit at 0.05 (many set it a 0.03). The message is, if you have two beers and drive, you're in trouble - so just don't! Only in America do we say it's a-ok to drink and drive as long as you stay below the magic BAC.
Second: The per se limit does not exist to exonerate. It exists to make DUI cases easier to prove when somebody refuses or cannot do physical tests. A person can still be charged with a DUI at a 0.075 in many states, and the difference in impairment between that BAC in a 0.08 is negligible.
Third: This article totally ignores the number of DUI cases in which the error rate of a Breathalyzer would need to be astronomical to be meaningful. The paid defense experts discussed who attacked the Drager (and the article fails to mention were later forced to recant their report) found a possible 6% error - meaning a 0.075 might show up as a 0.08. The difference in actual impairment between those numbers of course, being negligible. And for DUI charges where a person blows above a 0.10 (which is most of them) even a 20% error for the state would still mean the person is at or above 0.08 BAC.
9
@N We are in the United States of America. "It is better to let 100 guilty men go free than to convict one innocent man".
I think perhaps your viewpoint may be a bit different if you were the one innocent person being convicted.
6
@Sue Salvesen But that's exactly my point - the person who blew a 0.085 when they were actually a 0.075 is not actually innocent. DUI laws are written such that the 0.08 BAC creates a presumption of guilt, but that number does not define guilt or innocence. Murder is a binary crime - you either killed the man, or you didn't. Intoxication by contrast is not a binary state - a person may be too impaired to drive and have a BAC below the legal limit. So unless BAC results are being inflated by double or triple (something there is no evidence of), a error of 0.01 or 0.005 in BAC results does not mean a person was "wrongfully convicted".
4
@N
Legally, that argument is nonsense.
The state sets an alcohol limit. It cannot then ignore it if the result is lower than that limit.
5
Most state laws regarding driving while intoxicated provide that: a) roadside maneuvers are voluntary, not mandatory; b) a person has consented to blood alcohol testing by driving a vehicle (so no warrant is required); and c) a driver may choose between a test of his/her blood, breath. or urine to determine whether s/he is intoxicated.
The problem in enforcing the laws lies with law enforcement. Drivers are routinely lied to and told roadside tests are mandatory. Then drivers are told they MUST take a breath test, when in fact, they may have a blood test (or urine test) to determine their condition.
Law enforcement have been allowed to be sloppy in their enforcement because of the scourge that drunk driving represents, but our civil rights should not be thrown out because of convenience on an officer's part. Hand-held alcohol sensors should be impermissable (period). If a person is driving in a manner a police officer believes is drunken driving, take them to a fixed, calibrated breath analysis machine or to a hospital for an official blood draw.
The roadside injustices have to stop.
27
I for one am really glad I read this article. A friend of mine got a DUI in Pa. and to get a good lawyer and court cost and the rest the cost came in at 5000.00 for the first time offense. Now this includes getting the DUI expunged from his record after going thru the DUI courses and driving clean for over a year. So I really think this information is going to but a dent in a lot of state budgets.
109
I am a former prosecutor/criminal defense attorney with 40 years under my belt. I also had a sister killed by a drunk driver who’s breathalyzer results showed a .28bac here in NY. Needles to say, I never got involved in a drunk driver case. The tests, as your report states , are very inaccurate and even more importantly in my opinion, is the total incompetence of the machine operators. Yes, that being your local police who are totally clueless as to calibrations on most machines. Great article that finally exposes the truth. Thank you.
225
@Unbelievable - I too am an attorney who has lost a family member to drunken driving, and I agree with you 100%. The drunk driving enforcement in this country is a travesty of justice for the defendants charged using "test" results that might as well be made up out of thin air. This is a point in our justice system where it can be clearly shown that the system has been tampered with and rigged against those whom police choose to charge.
This should scare a whole lot of people, but hey, we have corporations here, trying to make a living and protect their greedy bottom line. Why are people getting all upset about a few misdemeanors that violate a few civil rights? (I am OUTRAGED but not surprised.)
47
@Unbelievable You said police being "totally clueless as to calibrations", police needs lot about them calibrated including their affinity to kill African American, their behavior with ordinary citizens. They walk up like a menace even meeting them in one of their own street fairs. It's in blogs, newspaper, FB, twitter etc
3
@Unbelievable Great comment. But the one thing missing from this article and these comments is practical advice. What do you do if you're stopped and the officer wants you take a breathalizer? Do you take it? Refuse? Take it but demand a blood test?
3
So if your breath test is not normal and you haven't been drinking and you pop positive for blood ou still go to jail? Who's really going to believe you. I think it would behoove the insurance companies to put all hands on deck and provide anti drinking and driving measures and give customer's who allow them on their vehicle's a large discount on their premiums. Why can't we fix this stupidity?
1
It's not stupidity. It's how the criminal injustice system works. All of it. Intentionally. Everything that was said about the breathalyzer tests is true for fingerprints, fibers, blood spatter, ballistics, arson, etc. None of these so called "experts" work according to scientific guidelines. The overwhelming majority work for the prosecution, since public defenders have no budget for expert testimony.
1
As someone who has followed some of the very inscrutable decisions of the PA state judiciary, I was curious about the actual decision by the PA judge from my neighboring county, so I followed the link and read the decision. It does not really support the impression left by the article those who are not under the influence might still test at 0.08 by these machines. In fact, the defendant specifically stated that they do not challenge the accuracy of the specific breathalyzer machine used between 0.05 and 0.15. What they apparently challenged was the use of it to charge them with having a BAC of 0.16 or higher, thus being liable for more serious charges. So, the actual contention is that, at least in PA, the police cannot accurately measure whether a driver is just drunk or falling down blotto.
3
@Bob The PA case was really interesting -- as you noted, it mostly focused on tests outside the .05-to-.15 range, but the "extremely questionable" quote we cited in the article was about a different issue that the judge addressed: the solutions used to calibrate the states' machines.
Pennsylvania law requires that the solutions be tested and vouched-for by an independent lab. But in practice, CMI (the maker of Pennsylvania's devices) was using its own solutions, made in house. That's why the judge said he didn't think any of the state's calibrations passed legal muster.
It's an interestingly nuanced issue. On the one hand, it's easy to waive away as a technicality -- who cares if the device maker calibrates things with its own solutions? The solutions are probably fine.
But on the flip side, as the judge wrote: that independent-lab requirement was intended as a check-and-balance safeguard. Eroding safeguards is a slippery slope.
I spoke to local prosectors who confirmed that in the aftermath of the judge's ruling, they stopped using breath tests in court, to avoid the legal problems he flagged.
8
@Stacy Cowley Similarly, you failed to mention in the article that the menacing-sounding expert report on the Drager was since withdrawn by its author, who admitted nobody should rely upon it for any purpose.
The Drager has survived court challenges in NJ and WA for a reason. Washington State Police conducted extensive validation studies of the Drager, none of which are mentioned in this article. And the defense bar's hired experts have a financial incentive when it comes to their expert reports and testimony, one just as strong or stronger than any cop's or breath test machine maker's.
2
@Stacy Cowley Thank you for your reply. I understand (and mentioned) that there were also more general technical problems with the particular machine. But the article as a whole was framed and headlined) not as a story about how lawyers have been able to use technical minutia to challenge DUI convictions but one that suggests that there are many innocents who are wrongly convicted by breathalyzers.
PA is home to all sorts of technical challenges in traffic cases; a driver who caused a fatal accident and who's blood was tested in the ER when he was unconscious claimed (and won) the case that the results were unusable because he did not give consent. There is a reason the "Philadelphia Lawyer" has long been a synonym for being technical sharpies, rather than good jurists.
1
I am highly suprised that breath tests are accepted as evidence in the US. In Germany, breath tests are known for beeing inaccurate but still used by the police as an indicator: If there ist a positive result, the person that is beeing checked has to take a blood test, but only the result of the blood test is accepted as evidence.
49
@Johannes. In the US, that usually depends on the respective State's laws, and can require a judge's order to take blood if the person doesn't volunteer. However, I agree that blood alcohol levels can only be reliably measured in blood.
5
If you take daily medications which are alcohol based, although they do not produce any intoxication, they will give you a BAC. And if you get pulled over and asked to blow, you could be arrested and convicted without ever having taken a drink.
11
@bored critic Really? You are prescribed a medication (or medications) which have enough alcohol to give you a 0.08 BAC? A teaspoon of liquid medication with an alcohol base simply is far below what could conceivably give you a DUI. And if your meds do give you a BAC of 0.08 or above, they affect your ability to drive no differently than getting there via booze and you really shouldn't be driving while on them.
7
@Bob. Fully Agree. The source of the alcohol doesn't matter, the amount does. Taking anything "medicinal" that measurably increases one's blood alcohol levels makes it dangerous to drive regardless. One particularly dangerous source are NyQuil and similar "meds" that contain alcohol and also antihistamines that cause severe drowsiness (see the warning label!). Anybody who takes that and drives is highly irresponsible and should be stopped and arrested before they kill someone.
5
Don't drink 8 hours before you drive. Don't drink so much that you have more than 0.04 blood alcohol if you plan to drive in the following days. More people are killed in the US by vehicles than guns. Those instruments do need upgrade but harsher limits and punishment on DOI is absolutely necessary. We should also mandate pre-drive checklists, annual physical exams, biannual recertification exams, special license for harsh road/weather, etc. With enough effort road travel can be as safe as aviation.
4
@ZL More than two thirds of accidents due to alcohol are among drivers with a BAC twice the legal limit. There is no evidence that a 0.04 BAC has any detrimental effect on driving more than the typical range of the skills and attentiveness of all drivers. The fatality rates for drivers at 0.0 BOC is about the same as for those between 0.0 and 0.07. ) The legal limit is not arbitrary but based both on both accident statistics and medical measurements. It is not until one considers those fatal accidents where one of the drivers had a BAC of 0.08-0.15 that the rates rise significantly.
It is my experience that the worst accidents, those where the driver at fault acts in a horribly reckless manner is invariably caused by someone with a very high BAC, often with several DUI's prior. Before we start making people into monsters for possibility that they had a traffic accident after a drink at dinner that may have impaired them as much as a bad nights sleep, we should really enforce the ones we have and put alcoholics who insist on driving in jail.
10
@Bob. Wrong. Please see
https://one.nhtsa.gov/people/injury/research/pub/HS809028/index_.htm
Even alcohol levels well below 0.08 already impair one's ability to drive.
2
@Pete in Downtown The meta-analysis that you cite is an interesting one. While I will not devote the hours that would be needed to fully review it, I am not that impressed with what I read. Such studies are difficult to judge as they use statistical analyses to glean information of numerous independent studies as if they were of similar reliability. Effectively, it shows that a "significant" number of studies show a statistically significant effect from BAC's below 0.08. Such studies vastly multiply research biases and increase all math errors geometrically. Also, since lawyer's groups are major funders of such studies, I would be as skeptical of them as a study of global warming from a coal company, or a smoking study from funded by a tobacco company.
2
Videotape everything. A jury will likely have little problem convicting someone who is slurring their speech and wobbly on their feet.
5
I hope the Times follows up this excellent investigative journalism with another article looking into the societal cost of elevating what had been a commong infraction into a misdemeanor. Once DUI became a crime, other infractions logically got ratcheted up too, which in turn led to misdemeanors more serious than DUI getting bumped to felonies.
In many ways, the laudable efforts of MADD to reduce drunk driving has been the principal driver of the over-criminalization of America, disproportionately affecting minorities and leading to the current calls for criminal justice reform.
20
Is it not obvious by now that the land of the free and home of the brave, is actually a corrupt, capitalist police state?
48
Often times these cases are cash cows for Lawyers, and municipalities. Judges can be influenced by the revenues brought in for DUI convictions. I have heard of Uber and Lyft drivers being harassed in Jersey shore towns so people have no choice but to drive their own cars. Apparently the money is so good from DUI stops. I have a friend who has one DUI from two years ago and was pulled over last week. He was barely over the limit and now will spend thousands upon thousands on attorneys and fines. He claims he had two beers after leaving work.
On the other hand the judgements for vehicular manslaughter for driving under the influence can be quite lenient if you ask me. Recently a women was sentenced to 6 1/2 to 13 years for killing two adults in West Chester, PA. An outrageous sentence if you ask me. If out of prison in 6 1/2 years that is not enough time for killing two people. Who knows how much time she will actually serve .This individual was obviously inebriated and way beyond a couple of points over the limit.
https://www.dailylocal.com/news/woman-jailed-for-killing-couple-in-dui-crash/article_06c19df8-007f-11e9-a972-3ff5ca709bb8.html
6
Please do a follow up in ignition interlock systems, which are often required administratively as a condition of having a driver's license reinstated. They require drivers to blow into the system in order to start and keep a car engine running. States contract this work to private companies -- who make more money the longer people are forced to use their products and have their own lobbyists to help secure these contracts -- and there seems to be very little if any accountability when their machines are not accurately calibrated.
43
Now let's have that same type of article....but this time about not trusting voting machines.
59
.08 is too low anyway. .10 was a fine limit but law enforcement was not creating enough revenue at that level. And, this is not an attack on LE. It is on our legislators who buckle to any sympathetic/popular cause no matter the rights that are trampled in the process.
39
@TDD
Revenue is why fines on everything have gone up exponentially. You also have added 'surcharges' on various offenses.
It's a joke and blatantly obvious. Go to court to fight any violation and they'll make you an offer. For most offenses you get a no point violation BUT the fine remains the same. For higher point violations they'll cut off 3 points and you pay the same or even higher fines for the privilege.
The number of speed traps in some jurisdictions is insane. Drive the Northway in NY. Speeding fines make up the bulk of the budgets in small towns there and local attorneys exist solely to deal with speeding offenses - for a nice fee - so you don't have to go back in person.
A NYS Trooper will pull a random car out of a line (all doing the same speed), writing summonses all day.
15
Stay away from Europe then! Limit in Ireland is 0.05 and is lower in some countries here
4
@TDD. I disagree. Blood alcohol levels of 0.05 and even lower already have an effect on people's ability to drive, cause reduced attention and increased reaction time. The simplest and safest policy would be the zero alcohol limit for driving any motor vehicle - so, no drinking and driving at all. Unambiguous, and good for road safety. It would also remove the uncertainty that is exploited by local law enforcement as described here. If someone wants to enjoy a drink or several, do so, and then have someone else who hasn't had any drink drive you home. That's what taxis, car service, buses ( or tee-totalling friends) are for.
10
Fascinating. In 1985,I was arrested on 4 counts of possesion of illegally forged RX's of opiates. After 30 days inpatient detox & treatment, the charges remained (4 counts; each for 10 years at hard labor; totalling 40 years!). 5 months later, my attorney got me into a "Diversion Program":1 year of weekly group therapy sessions, along with 3-times-a-week urine screens. I successfully completed their program. My charges were dropped & my record "expunged". However, there was a 29 year old young man in my group who had 5 DWI convictions. He had lost his driver's license but that was it. Of course, he got drunk, drove a car, and got his 6th DWI (all before age 30). Unbelieveable.
5
When I was 18, I received an minor consumption drinking charge when some friends and I were caught hanging out with some other teens in a hotel room. We were all in St. Paul, MN for the state wrestling tournament.
My friends and I had all been drinking casually for an hour or two. However, when the police made us each blow on the breathalyzer (or whatever brand of device they used), at least two people had results that indicated 0.00, suggesting they hadn't been drinking. The rest of us had to go to court, pay fines, do community service, attend an alcohol awareness class, and spend a year on probation (!). I'm happy that my two friends got off and didn't get charged with a minor consumptions, but it just goes to show that breathalyzers may have also allowed many drunk drivers to pass the test and get back on the road.
17
lets see, there was an article not too long ago, where drug test "kits" gave false positives, for anything !.....meaning air, chocolate, icing off a glazed doughnut, etc. came back for drugs.
with that said, the same holds true for alcohol. the right to face your accusers (the test machine, or kits from companies), or allowing a outside testing of said machine/kits is egregious enough for a class action law suit in my opinion.
how many peoples lives have been ruined by these things? how many settled, and plead to lesser charges when none were warranted?
how much pain, suffering have these folks been through? whats that worth?
states, counties, and cities should be held accountable, financially, for the last 30 plus years of false arrest, jail time, fines, and any hardship created by these companies.
im notta lawyer, i would like to see one take on a class action lawsuit though.........and yes, i was made to be apart of this crooked system.....not having monies for a good lawyer to get these charges thrown completely out.......thanks for reading.
14
Thank you for this spectacular journalism about the epic corruption in America's nationwide police agencies.
These rigged machines should be banned yesterday.
The amount of police-prosecutor moral rot makes America a bit of a fascist police state.
This country needs a new 2019 Civil Rights Act restoring the basic rights of individual citizens against an overzealous and malfeasant government that seems more interested in its police-prosecutor batting average than it is in protecting and serving the public.
There' nothing worse than trumped up charges.
Vote for progressive change against our current right-wing police state.
166
@Socrates
I was so with you until the last sentence.
This has nothing to do with politics or progressives. Arizona, where Republicans have long been in control, has the best way of doing it, with blood testing that's infallible, along with due process for drivers who, if they refuse, will get blood drawn regardless because they keep judges on call to issue search warrants. Another commenter has said that's the way they do things in Germany, which seems fairly progressive. On the other hand, every state except Arizona, I believe, relies on these rinky-dink machines too often in the hands of rinky-dink cops. That includes California and Washington state, the latter featured in this story, that both are way more progressive than Arizona.
Not everything is partisan. If we are going to change things for the better in this country, every once in awhile, it would do no harm to acknowledge that Republicans, every once in awhile, do things better than Democrats, and DUI enforcement, as it pertains to Arizona vs. the rest of the country, is a prime example.
Thanks.
21
@August West If we only had a Republican party. It's the Trump party now and many of us don't trust it any longer. Sorry, but it's just how I feel.
11
@August West “ I was so with you until the last sentence.“
Everything is the same political tirade with Socrates, regardless of the issue.
4
Once upon a time in CA you could choose a urine analysis instead of a breath test. I wonder if that option is still out there, and whether it's accurate.
2
@margaret_h
In most situations, a urine test is no longer available in California. Urine tests are less reliable than breath tests and difficult to administer for both the officer and the suspect.
How about a mandatory blood test to confirm every breathalyzer result?
The positive breath test should be more than enough to justify a warrant.
9
Does anyone in law enforcement care whether people are innocent or guilty? Or about wasting taxpayer funds?
91
I think a reasonable argument can be made that at best they don't care, or prefer to frame any "usual suspect." Consider the nearly half a million untested rape kits that were gathering dust in police departments. HALF A MILLION. Now we all know for every woman willing to come forward and be tested there are untold more who couldn't or wouldn't. Cops just want to clear their books and repress and terrorize working people on behalf of the their rich overlords. It is always particularly useful to intentionally convict and punish the innocent. It sends a far more terrifying message.
11
Power corrupts; absolute power corrupts absolutely.
All over the country, Police and Prosecutors have been happily 'applying' the law, probably aware of these errors.
If the Police do not police themselves, this is what happens - the system is no longer trusted. In the long run, people who drink and drive will get away with it....
When will the Police learn that their integrity actually matters ?
63
Truly amazing how corrupt the government can be. The very group of people who should enforce honesty and fairness. The reality is they frequently do the opposite.
The government comes into being through normal people filling those positions. And of course, normal people can be as corrupt as so-called criminals. Right on up to the highest position in the land.
It seems to be foolish to rely on the government in general as you never know if they're being honest or not. The government fails to realize why many people simply have no trust in the government.
You might as well just ignore the law as long as you're not harming anyone. After all, who the heck is the government to tell us what to do given their level of honesty.
52
@Billy Walker Gov't corrupt? To coin a phrase: "Power corrupts and absolute power corrupts absolutely."
3
That is why the breath test isn’t admissible in court. It’s used as one test among many other factors- admissions regarding drinks, slurred speech, glassy eyes, blood shot eyes, odor of alcohol, unsteady walking, inability to answer questions, and then a blood test and/or a reliable blood test for a machine.
I have prosecuted hundreds of DUI cases and this article is misleading.
9
@Mark ....seems you are part of a problem, and yet offer no solution....so if its not admissible, why suspend a drivers license if they object to blowing?
12
I’m not sure one equates with the other. A breath test is helpful, thought not dispositive. Just lie detector test, which is also not admissible.
My solution would be a blood test at the station. Blood tests are not only more accurate but also pick up other substances like cocaine and marijuana.
More important, just don’t drink and drive.
8
Over 4 decades I have seen wildly inconsistent approaches to enforcing DUI statutes.
Currently it seems that the DUI checkpoint has found favor with many local departments. This blanket approach seems to focus as much (if not more) on revenue generation than preventing accidents caused by drunk driving.
Yet at the same time I have seen numerous occasions when police gave preferential treatment to local residents who were obviously severely impaired.
There have been far too many incidents around here involving drunk police officers. One officer driving drunk fired his gun 14 times at another motorist. It was interesting how his arrest and arraignment were handled with far more 'discretion' than is typical. Another officer one town over killed a woman in a hit and run accident. He was drunk. Alcohol seemed to be a problem in that department. That incident was one of many - most of which never saw the light of day.
I suspect that few of those enforcing DUI laws are ever charged themselves. 'Professional courtesy.' It has to be pretty blatant - with plenty of witnesses for something to happen.
38
It seems to me there are two potential problems with breath-testing machines: The first, and probably easier to resolve, is whether they are intrinsically flawed. That is, if the machine is set up and operated properly, does it produce results that are reliable to an acceptable degree of scientific probability?
I say this should be easier to resolve because it should not be hard to round up volunteers willing to consumer measured amounts of ethanol and have the results tested by both breath testing and blood testing. If the results are acceptably consistent, machine is intrinsically okay; if not, the machines must go.
The other and more intractable issue, as noted in this story, is human error, in the initial setup and calibration, ongoing maintenance, and administration of tests. Some human errors are of course inevitable -- which is why newspapers have a "corrections" section. However, some of the conduct by manufacturers and police lab employees described -- if proved in court or to administrative panels -- should result in disqualification of those employees at least, and criminal prosecution in the worst cases that resulted in serious harm to innocent people.
8
If a person tests positive , give that person the option of undergoing an immediate blood test.
IF the person refuses the breathalyzer result stands.
3
@david I agree. However, it seems that this logical solution is not the law in many States, apparently including our own - New York.
1
In Arizona, cops have trained phlebotomists on staff and go with blood tests, with are near infallible. There are on-call judges who issue search warrants electronically if you refuse, and they will hold down if necessary. That adds not many minutes to the process, and if you refuse and decide to get a judge involved. they'll take on an added charge of refusal to test, which has its own consequences.
Every state should do this. It's the gold standard. No more arguments over technology, no more $50,000 bills for defendants who now hire lawyers and techno-geek experts to attack the accuracy of the machinery, which, as NYT has showed, is absolutely questionable. Lives and liberty are at stake, and when lives and liberty are at stake, we should not settle for less than the best. With blood testing, there is no argument: You were drunk, as defined by the law, or you were not.
Lastly, as I read this story, I got angry, and not at defendants or their lawyers. In a perfect world, some cops and lab technicians would be fired or prosecuted or both.
81
Kudos to Arizona. Unfortunately, in much of the country, low price is more important than justice. On a per test basis, I'm sure the machines are cheaper than blood tests. And if you don't pay for calibrations or trained staff, they're even cheaper. It's a crying shame.
21
@August West. Fully agree! My State (NY) would do well to do likewise! The only accurate way to correctly measure blood alcohol levels is to measure them in one's blood. That test is highly standardized and reproducible. The breathalyzer tests aren't. Their only purpose is or should be to indicate whether a venipuncture is called for.
6
"Maintaining machines is up to police departments that sometimes have shoddy standards and lack expertise."
I look at the police today and I see a lot of them who cannot possibly be passing their physical fitness tests. So someone is already relaxing standards for public safety there. It's hard to believe that they spend much energy on maintaining their technology when they don't even seem to care enough to maintain their own ability to run after a suspect. I hope at least that they clean and oil their guns.
24
I'm sharing the following to illustrate that DWI/DUI is used as much as a cash cow for local municipalities as public safety:
I got arrested for a DWI about a decade ago in Joplin, MO. At the time I was a chef at a bar and grill. The kitchen had closed and I had two beers there with friends after my shift. As I pulled out of the parking lot I was immediately followed by a police car. Two miles later he pulled me over because I was speeding. Yeah - you've been in my rear view mirror and no I wasn't speeding. Anyway, got me out of the car and gave me a breath test. Didn't tell me the results, but I assume I was under the limit. He then made me perform the field sobriety test, which I'm sure I passed. However, he asked me to take another breath test which he took great glee in showing me was .008. This is the retrograde extrapolation. Cuffs on and off to the station we go. Once there I blew a .007. Five mile walk back to the car. Thanks guys. They also gave me a ticket for DWI at .007 and speeding. I called the office of the DA and was told to pay the speeding ticket and he wouldn't prosecute the DWI. I was guilty of meither, but better to pay $40 (or whatever it was) than to pay an attorney a couple of grand to defend me.C'est la vie
74
@Geoff
Odds are that $40 will be more like $400 now.
Fines on speeding have gone up exponentially - with added surcharges.
But then DUI fines are even higher.
but it's all about deterrence not revenue..........go to court to fight any 3 point violation and they'll offer you a non-moving or no point violation - with the same fine.
I saw a guy with a stack of violations - speeding, no license, and more (all pretty serious) - let go after paying a huge fine on 'abandoning a vehicle'. I was there for a bogus seat belt charge issued at a check point set up expressly to write summonses. Ironically the cops were too lazy to come to court. Mine was dismissed.
10
Politicians who authorize and support the use of these flawed machines are the root of the problem. If the politicians are held accountable, profiteering at the expense of harming innocent citizens can be stopped.
34
@RC I asked The Times if they did an analysis of state legislators who have taken donations from the companies that produce these machines. That was myopic. It's most likely about the revenue the town, city or state collects due to DUI's. But, I don't put anything past the politicians paying back their big donors by looking the other way regarding this atrocity....until he/she or a family member is embroiled in this injustice.
2
Once upon a time you had to be soused behind the wheel to get arrested. Now, if you have any alcohol at all in your system if it's not DWI, it can still be "under the influence." Better off drinking at home, or calling s taxi.
95
@Mark Browning If I owned a bar, I'd hire a fleet of taxis and/or Ubers and Lyfts to take my customers home. I'm sure most of them wouldn't mind paying towards the costs, if not all of it.
3
@Mark Browning
I could not agree with you more. Better to call an Uber than take the chance. Even one drink can seriously alter one's ability to drive a car. You need good judgment, good vision and good reflexes to do that. Alcohol adversely affects all three.
6
@Mark Browning I was a bartender many years back, and I have called plenty of taxis for inebriated patrons (we didn't have Ubers or smartphones back then, sadly...so much easier today!!!). It was safer for them, safer for me, and safer for everyone out on the road. What's the downside? A couple of bucks?
DUI is too serious a problem to allow profits dictate solutions. Make a machine that is accurate and dependable, but make the technology open for testing to anyone who wants to test it. Corporate secrets aren’t a priority over saving lives.
202
That opens up the question of whether drug manufacturers should be forced to sell new drugs enough to fill market limits or face an abolish of their patent.
2
Manufacturers use the same electrochemical gas sensors in their cheap consumer models as in their much more expensive devices sold only to police, and these can be independently tested. While the consumer models can't be calibrated by the user and drift over time, they were calibrated before they left the factory and so should give reproducible results. Any 3 off the shelf should give similar readings when exposed to the same source of alcohol or repeated breath samples.
Many consumer anaylzers give you the option of displaying Breath alcohol concentration or estimated Blood AC, allowing you easily to determine the formula being used to convert one to the other (which in most consumer detectors is not corrected for breath temperature).
Problem is that the breath-blood correlation is not so simple and cant be reduced to a single variable. Correlation varies non-linerally over time since last alcohol consumption which is why manufacturers advise to wait 20 to 30 minutes after drinking to test. Also varies with route of Inhalation (nose vs mouth) prior to exhalation and the breath holding time in between if any.
The solution is blood testing!
3
@SXM Alcohol is just one of many ways someone can be impaired, including being tired or angry. This notion that a test is your judge and jury for criminal driving is nonsense.
How about you don't get pulled over unless your driving is erratic? Nobody needs to concern themselves for WHY they are driving poorly.
Robbing a bank is a crime whether you are rich or poor, work at the bank or not, are drunk or sober. That's because the crime is robbing the bank.
1
Most alcohol related fatalities are caused by people who are 2 or 3 times over the BAC limit and have multiple DUIs. States seem to have figured this out. In Colorado, your 3rd DUI is a felony. I am guessing this will do much more to reduce traffic fatalities than the .08 BAC limit. Traffic fatalities are down dramatically primarily because cars are much safer than they used to be, not because of .08.
55
@RK Rowland But the answer to that is to toughen the penalties for repeat offenders, not cast a flawed net wider.
2
Instead believing”They haven’t been properly calibrated”,it’s better to know as intentionally calibrated in some areas to convict more innocent people & collect more revenues for enriching the depleting cities/towns budgets so everybody as employers pocket more and we’ll cushioned retirement lives. We have many corrupts @ all power levels and their greed puts ordinary citizens in unnecessary troubles. The company who makes such machines are @ faults too. Phytoist.
18
Finally, some decent reporting on this issue! Thank-you! As a physician I am appalled at law enforcement’s cavalier attitude towards testing. Like it or not, they act like hunters, and little can dissuade them from bagging their quarry. Of all professions, quite terrifyingly, it seems to me that the police as a whole are the group most infected with so-called confirmation bias. That is, once convinced of a “fact,” the maintenance of an unswerving belief that all data is in support of their belief in the guilt of the accused. Heaven forbid you have a spine problem or cerebral palsy (fail “field sobriety”) or have had a breath mint or a dental analgesic. My advice, ALWAYS demand a blood test. Period. Those machines from a medical accuracy perspective are merely toys. Put another way, if the tests I ordered were as inaccurate as the breath alcohol testers, I would probably have one death a week from medical errors. This is a shameful, and appalling state of affairs.
406
@Idahodoc Agree completely! The state of forensic evidence frequently is dubious at best and these devices are among the worst. Just another situation in which the average citizen can be crushed by the criminal justice system.
34
@Idahodoc . Agree! I also commented here that I am amazed that breathalyzer results would be used for anything other than indicating the need for an actual blood alcohol test from a blood sample, and by a certified clinical laboratory.
Breathalyzers cannot exactly determine blood alcohol levels, so it's beyond me that they are being used for this purpose.
21
@Idahodoc I vaguely remember a case from the early 90's in Nashville where the father of a young lady who had been arrested after a breathalyzer test challenged the accuracy of the machine and won the case. After testing several of the machines it was found the readings were inconsistent and they hadn't been calibrated properly.
I thought to myself then that maybe there would be some backlash against using them.
Silly me.
6
Interesting these devices really started becoming popular right around the time organizations like MADD entered the public consciousness - along with the middle-aged white male "mothers" on their governing board.
A cash cow for municipalities. Now even more so that cars have bluetooth and all that cellphone ticket revenue has dried up.
And no, I don't even drink.
44
I think MADD is a good organization. But then again, I would. One of my students was hit and killed by a drunk driver too drunk to realize she was still on the hood of his car a mile later.
A young cousin of mine was hit and thrown across Park Avenue by a drunk behind the wheel.
They're murderers or would-be murderers behind the steering wheels of big machines.
11
Impractical article. Without an alternative, this is the only way forward.
Impractical article? Thousands of people are being prosecuted because of significant bureaucratic irresponsibility. The demonstrated disregard is completely unacceptable.
65
As if we didn’t trust the criminal justice system already. And with good reason. California just loves to jail people. The whole industry of law making and enforcement is rotten to its core. Most of my friends in law enforcement have either quit or taken LE jobs in other states elsewhere.
40
Arrest first and ask questions later. Though this is the most egregious, DUI/DWI is only one example of many where the trial penalty is used to extort citizens to fund local municipalities. The constitutional rights of us all will continue to be eroded as the newly appointed stalwart of McGahn's judges take hold of the judiciary. At least it's better than China's justice system... for now.
96
that's right. USA has gone overboard but China has zero rights. however, there are other civilized countries in the world.
1
@Zhang Once you say such practices of towns is for extortion of funds for local municipalities,its comparatively nothing better than China's justice system except may be executions for political reasons in China.
1
Here in Massachusetts, they want to compound the problem by using a breathalyzer for checking on marijuana use. Even though the state admits there are real problems with the device.
31
Dui of alcohol or marijuana should be tackled priority. Whether punishments should be severe can be questioned if machine unreliable.