Is the Breath Test Machine used to Prosecute DUIs Fatally Flawed?

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If you’ve ever been arrested for DUI, you might be familiar with the machine that awaits you back at the police station. This machine measures the blood alcohol concentration in a person’s breath when they blow into the machine. These devices play a huge role in prosecutors’ cases against people charged with DUI.

For every person driving in Washington State, a refusal to take a breath test after an arrest for DUI has serious consequences such as license suspension and/or jail time (see RCW 46.20.308). However, once a person takes a breath test, the measurement can be used against the person in a court of law.

The NY Times recently wrote about the issues surrounding breath test machines nationally, calling into question their reliability. The article highlights errors—both human and programming—that have led several states around the country to find the results unreliable. Even more concerning, companies producing the breath test machines have kept the machines’ software under wraps and nearly impossible for defense attorneys to examine.

The article dives into Washington State’s use of the Dräger Alcotest 9510—one of the common breath test machines used. In 2015, a local court granted defense attorneys the ability to look into the underlying software used in the machines. Two programing and security experts were hired for the job, issued a report, but reluctantly backed down after a demand by the powerful company it was investigating.

The report never made it to court, however some copies survived, detailing the ways in which the Alcotest 9510 is “not a sophisticated scientific measurement instrument” and “does not adhere to even basic standards of measurement.” For example, the machines did not have a breath temperature sensor—a financial decision made in purchasing the machines. Without verifying breath temperature, the machines could inaccurately inflate alcohol concentration readings.

And not only does the article call into question the reliability of the tests, it also speaks to the serious consequences of police departments becoming dependent on them. Not only can people be wrongfully convicted on flawed evidence, but serious offenders can walk away scotch free when a flaw is detected and the results are thrown out. In both Massachusetts and New Jersey, more than 40,000 convictions are at risk of being overturned given their reliance on faulty tests.

At Horwath Law, we continue to stay educated and aware of any developments with the reliability of breath test machines. We understand the important role these machines play in DUI cases and aren’t afraid to challenge their use in court.