Virtually all police departments in Florida and around the country use breath-testing equipment to determine whether drivers are operating motor vehicles under the influence of alcohol. These devices are highly sophisticated and accurate when they are properly maintained and regularly recalibrated, but the results of an investigation published by the New York Times on Nov. 3 suggest that many law enforcement agencies are extremely lax in this area.
New York Times reporters studied thousands of court transcripts, corporate papers, emails and other documents and interviewed more than 100 police officers, attorneys, scientists and executives, and they discovered that the toxicology evidence used to support drunk driving charges is often wildly inaccurate. The investigation reveals that improper calibration can produce breath test results that are 40% too high, and it also found that many law enforcement agencies continue to use equipment they know to be unreliable. One police department drilled holes in a defective piece of equipment to increase BAC results according to the newspaper.
This lack of oversight results in thousands of drunk driving cases being dismissed each year. The New York Times reporters found that unreliable breath test results prompted judges in Massachusetts and New Jersey to dismiss more than 30,000 DUI charges in just one year. This worries law enforcement agencies as well as civil liberties groups.
The results of the investigation are unlikely to be surprising to criminal defense attorneys with experience in drunk driving cases. When their clients face DUI charges, attorneys may study maintenance records carefully to find out if the equipment used to gather toxicology evidence had been maintained properly and recalibrated on a regular basis. Attorneys might seek to have drunk driving charges dismissed when their clients suffer from diabetes or one of the other medical conditions that are known to influence the outcome of breath tests.