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Widespread Problems With Breath Tests

Posted by Mark Matney of Holcomb Law, PC Newport News VA

Post by Attorney Mark Matney - Holcomb Law, PC, Newport News, Virginia...  Great article about breath testing.  Raises good issues regarding Virginia's presumption of reliability of the machines.  I participated in a breath science class led by John Fusco, who is quoted in this article.  New York times " We investigated widespread problems with breath tests for suspected drunk driving - and found that the closely guarded machines have helped convict thousands of Americans of a crime they may not have committed.  Here's what we found."

A million Americans a year are arrested for drunken driving, and most stops begin the same way: flashing blue lights in the rearview mirror, then a battery of tests that might include standing on one foot or reciting the alphabet.

What matters most, though, happens next. By the side of the road or at the police station, the drivers blow into a miniature science lab that estimates the concentration of alcohol in their blood. If the level is 0.08 or higher, they are all but certain to be convicted of a crime.

But those tests — a bedrock of the criminal justice system — are often unreliable, a New York Times investigation found. 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.

Judges in Massachusetts and New Jersey have thrown out more than 30,000 breath tests in the past 12 months alone, largely because of human errors and lax governmental oversight. Across the country, thousands of other tests also have been invalidated in recent years.

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. Maintaining machines is up to police departments that sometimes have shoddy standards and lack expertise. In some cities, lab officials have used stale or home-brewed chemical solutions that warped results. In Massachusetts, officers used a machine with rats nesting inside.