Up to 1000 DUI cases in Philadelphia may be impacted by a faulty breath test machine that was not properly calibrated.  What happened in Philadelphia is that an expired solution was used to calibrate the breath test machine.  This error was discovered by a DUI Lawyer likely in preparing one of his cases in order to attempt to have the results excluded at trial.  Gray Hall wrote an article for ABC6 in Philadelphia discussing the problems with the machine and notes that the police department were quick to say that the machine was working properly and that is was human error.

In Massachusetts, we are in the process of our own litigation over the accuracy of the breath test machine. Over 700 cases have been stayed awaiting the resolution of the litigation in the Concord District Court which concerns the following issues:

1. Is the Computer Program, known as the source code, scientifically reliable?
2. Is the breath test machine sufficiently specific for alcohol as other compounds may be confused with the alcohol by the breath test machine.
3. Does the machine properly calibrate itself?
4. Why was the Commonwealth using breath test machine that were not properly calibrated. The breath test machines were allowing the machine to produce reading even if the machine did not calibrate at the accepted range when reading a known alcohol solution of .08.

To read more about the out of calibration issues in Massachusetts, you can visit my website, which also discusses the source code challenge to the Alcotest 9510 used in Massachusetts.

In Philadelphia, the police department was using expired solutions to calibrate the breath test machine.  The police in Philadelphia use the Intoxilyzer 8000 breath test, which uses a wet bath solution like the old machine used in Massachusetts, the Alcotest 7110.  The current machine in Massachusetts operates on a dry gas solution.  This solution is suppose to be a .08 alcohol content and is used to calibrate the machine prior to every breath test.  In Massachusetts, the regulations put out by the Office of Alcohol Testing  consider the machine as being accurate as long as the machine reads anywhere from .074 to .086.  The breath test machine was still providing a reading when the machine read below the calibration range.  This caused the District Attorney or stop using the breath test machine for about four months in some counties during the summer of 2015.  The litigation concerning this controversy is still ongoing.  Recently, the Massachusetts Supreme Judicial Court judge allowed a defense motion allowing great access to test the breath test machine, including giving the defense expert access to tow breath test machines as well as allowing the expert to conduct a dynamic test analysis.

This story from Philadelphia illustrates why breath test evidence should be challenged and the those charged should understand the numerous defenses when you take a breath test and how to challenge them in Court.

If you have questions about breath testing, feel free to Contact Attorney DelSignore at 781-686-5924; he would be happy to discuss any issues with those charged with DUI, attorney’s looking for advice or anyone trying to understand the issues concerning the reliability of breath testing.