Even More Problems with Breath Tests

Yes, there are even more problems with breath tests than discussed in previous blogs. From making modifications to the Intoxilyzer, the most commonly used breath testing device, to faking records and altering software, the problems with using breath tests as evidence of driving under the influence seem to never end.

A surprising case in Florida from a few years ago showcases how even minor modifications to the Breathalyzer can lead to a strong defense to DUI charges in court. Apparently Breathalyzer manufacturer CMI Inc. did not tell the National Highway Traffic Safety Administration that the company had made seventeen modifications to the device. The state of Florida never learned of the modifications because it did not, at the time, require manufacturers to report them.

When defense attorneys challenged Breathalyzer test results because of the modifications, a Florida court agreed that “criminal defendant[s] should not face conviction and possible incarceration based on secret undisclosed evidence.” The court was concerned that manufacturers and prosecutors could essentially cheat the system by altering breath test devices. As a result, prosecutors in Florida can no longer simply present a test result – now they must use an expert to explain how Breathalyzers work.

Modifications to the Intoxilyzer are not the only problem in the news. In March 2017, a former lab worker in Colorado blew the whistle on repeated forgeries of his signature to allow incorrectly calibrated Intoxilyzers to be used by law enforcement. The Department of Health was under time pressure to put new breath testers into service and allowed untrained people to use the lab worker’s signature in lieu of a proper calibration process.

Code glitches in the software used by breathalyzers can affect breath test credibility as well. Most software contains at least a few small bugs, but defense attorneys have repeatedly raised concerns that bugs in the Intoxilyzer software lead to incorrect test results. So far, courts have been skeptical, but they have in many cases ordered disclosure of the Intoxilyzer source code. CMI Inc., the manufacturer, has resisted disclosure on trade secret grounds but has been ordered to turn over the code.

Have you been charged with a DUI after taking a breath test in Oklahoma? Clint Patterson, Esq., of Patterson Law Firm, a former Tulsa prosecutor, uses his trial experience and expert-level knowledge of DUI science to defend drivers. He has the experience and the insight to evaluate the strengths and weaknesses of your case. To schedule a case evaluation, visit Patterson Law Firm online or call Clint’s office at (918) 550-9175.