New York Times Investigation: Breathalyzers are Unreliable Machines and Should Not be Trusted

Posted on July 06, 2020 in Uncategorized

NCDD Blog - Kevin Bennett

By Kevin Bennett

Breathalyzer devices can be found in every police station in the country. Law enforcement use them as indisputable proof of a driver's blood alcohol level, incorporati0ng them into evidence when prosecuting suspected drunk drivers. However, there is a growing body of evidence to suggest breathalyzers are not a reliable tool when it comes to measuring how intoxicated a driver is behind the wheel.

"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," according to a New York Times investigation. "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."

Part of the problem in why breathalyzers are so unreliable lies in manufacturers refusing to sell breathalyzers to the public. This prevents defense lawyers and the accused from inspecting the machine's code to see if there are any flaws built into it, according to the Times. The manufacturers' secrecy has left states to decide how to test the machines and test for themselves if they're reliable. Many states are finding breathalyzers are not as trustworthy as advertised.

A Vermont toxicology lab rated CMI's Intoxilyzer 8000 as "unsatisfactory" and that nearly every test result was inaccurate. When the state of Florida adopted the machine, it short-circuited and even started to smoke. CMI fixed the problem by drilling small holes into exhaust valves on the machine to solve the smoking problem. But the doubt in the machines was already set as several Florida judges ruled to not allow the breath tests in their courtrooms. The Intoxilyzer 8000 has been used in Ohio, Florida, Oregon and Mississippi despite its reputation as unreliable.

Given the dubious history breathalyzers have when it comes to measuring intoxication, criminal defense attorneys stand ready to challenge the reliability of the breath test. Many experienced DUI defense attorneys consider breathalyzers flawed and unreliable when it comes to measuring impairment and alcohol concentration. Under Texas law, drivers however may be scared of the possibility of losing their license for up to 180 days and even being arrested, leading to their submission to a breath test. What Texas police won't tell you however is that people who refuse breath tests under Texas law, often end up with lower court costs, different bail conditions, and a much higher chance of winning their case.

Texas Drivers who are suspected of a DWI offense should expect an officer to request a breath or blood test as part of the investigation. While Texas drivers under most circumstances do have the option to refuse to submit to a breath test, there are some instances under Texas law where an officer can force a driver to take a breath or blood test. These conditions include if a child passenger was in the vehicle when the driver was pulled over; if an individual was killed or hurt during an accident, or if the driver has previous DWI convictions. Once the investigation results in a person being arrested for DWI, the accused person is considered to have consented to undergoing a breath or blood test under Texas' implied consent law.

In Texas, a driver's first DWI conviction can cost up to $10,000 or more after factoring court costs, fines, monthly probation fees, paying surcharges to the Texas Department of Public Safety and filling an "SR22" policy, which leads to more expensive insurance. First time DWI offenders in Texas can also face up to 180 days in jail and have their license revoked for a year. If a first-time DWI results in a BAC of .15 or higher, the offense is upgraded from a Class B Misdemeanor to a Class A Misdemeanor. Convictions for a DWI BAC with .15 or higher are punishable by up to a year in prison, a fine up to $4,000 and having your license revoked for up to a year. Especially in cases involving a high BAC, challenging the test results is one of the most important factors for the defense. Different states have different DWI laws so it is important to consult a criminal defense attorney in your locality or where the 0offense occurred.

Many breathalyzers are outdated when it comes to the task of measuring blood alcohol content. Outside factors like acid reflux, recent dental work, food intake and exposure to chemicals can reportedly create an artificially high result in a breathalyzer test. Mishandling results or not following correct breathalyzer protocol can skew results. A skilled defense attorney can make light of these mistakes, casting reasonable doubt on breathalyzer results.

Kevin Bennett is a DWI defense attorney in Austin, Texas. He studied at the University of Texas and received his Juris Doctor from the South Texas College of Law. He defends his clients from traffic offenses, drug charges, and is an active member of the legal community. He is an active member of the National College for DUI Defense and the Texas Criminal Defense Lawyer's Association.

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