A New York Times article by Stacey Cowley and Jessica Silver-Greenberg confirms what Massachusetts OUI lawyers and defenses attorneys everywhere have been arguing for years, that breath test machine are often inaccurate and unreliable.  The Times found that these machines, a “linchpin of the criminal justice system,” are, at best, unreliable. In its investigation, The New York Times found evidence that the machines’ internal code was flawed, creating rounding errors that pushed results over the legal limit – 0.08 or higher. Further, the machines are required to be calibrated; often, this never happened. In some cases, calibration records were completely faked.

Defective Design = Reasonable Doubt: Experts in Washington find numerous problems with breath test machines and results

At least one manufacturer – Dräger, a German company – has repeatedly blocked efforts to review their software code as well as any reports regarding the machines. A judge in Washington granted a request from defense lawyers to have the code evaluated by an outside expert. Robert Walker and Falcon Momot, described as “veteran programmers and security experts,” wrote a report titled, “Defective Design = Reasonable Doubt.” They shared the report with defense attorneys at a conference. But Dräger demanded that the report be destroyed by them as well as anyone with a copy. The New York Times was able to obtain a copy that had escaped destruction; it stated that Dräger’s Alcotest 9510 machine was “not a sophisticated scientific measurement instrument” and that it did “not adhere to even basic standards of measurement.” Instead, the machine rounded up at least some of the results. Further, these machines did not account for the temperature of the person’s breath. Samples above 93.2 degrees (as most breath samples are) often cause inaccurately high readings. This is because Washington opted not to pay the extra money for a sensor that would measure breath temperature and allow the machine’s software to account for it. Washington was not alone.  Massachusetts has not paid for the additional feature to account for breath temperature, only the State of Alabama has this added feature for enhanced accuracy of results.

Examples of States breath test labs being poorly run and subject to inadequate oversight were found by the New York Times.

Colorado falsified calibration records

A Colorado lab technician who tested over 160 new machines testified that he had been ordered to destroy records from those tests just in case defense lawyers attempted to subpoena them. He further testified that these lab records were falsified: the records showed he had calibrated many of the machines when, in fact, he had never even touched them.

Washington, D.C. used incorrect data, compromising hundreds of convictions

When Ilmar Paegle took over the breath-testing program for the Metropolitan Police Department in Washington, D.C., he found that each and every machine generated results 20-40% too high. He then realized that his predecessor had routinely entered incorrect data that miscalibrated the machines. Despite years of problems, city prosecutors only acknowledged that they had occurred over the previous 18 months. This affected around 350 prosecutions that the city believed were based solely on results from breath test machines that were too high. The lawyers in those 350 cases were notified that their clients could request to have their cases reopened. However, this left at least 700 convictions standing that prosecutors believed did not hinge on the faulty breath tests. The problem: most of those convictions were the result of guilty pleas, entered into by defendants who incorrectly believed the prosecutors had “infallible scientific evidence that they were drunk.”  Since the public believes that breath test are accurate, many individuals do not seek legal counsel and simply resolve their cases without learning about the flaws in breath test machine that could impact their case.

Massachusetts’ highest court invalidates over 36,000 breath test results

In Massachusetts, police officers used a machine with rats living inside. In a consolidated case of lawyers representing hundreds of drunk-driving defendants in Massachusetts, evidence was discovered that the state’s forensic lab had hidden records of hundreds of failed calibrations of Dräger’s Alcotest 9510 machines (the machines reviewed by Walker and Momot in Washington). Massachusetts’ Supreme Judicial Court allowed the lawyers to hire experts to test the Alcotest 9510 machines. The experts found troubling errors. For example, “when the devices’ two testing methods produced substantially different results…the machines were supposed to generate error messages and terminate the test. Instead, the devices printed a result.” Justice Robert A. Brennan ordered that all tests from the state lab were inadmissible until the lab became accredited.

This covers eight years of tests, totaling more than 36,000 breath tests. At least 29,000 now-invalidated tests have already been used in drunk driving convictions. Massachusetts will begin to notify those individuals that they can seek a new trial based on these now-inadmissible faulty breath test results.

In Massachusetts, the Commonwealth has recently begun using breath test evidence against after a two year period were results were not let into evidence.  The Massachusetts Office of Alcohol Testing recently became accredited and police departments were required to have the breath test machines certified after April 18, 2019 the date of compliance with Judge Brennan’s order.

Breath test evidence should always be challenged in court.  There are many inaccuracies that ultimately require careful attention to detail to reveal that can make the difference between winning your case and accepting a plea or a guilty verdict.  You can visit Attorney DelSignore’s website to learn more about breath testing and other OUI defenses.

 

You can also read the full New York Times article.